Moving Beyond the Asylum Muddle

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The horrific images of refugees dying on European shores seem – finally – to have galvanized public opinion in favor of a shift to protection rather than deterrence. Some leaders seem still to be committed to harsh action – Hungarian Prime Minister Orban’s comment that the arrival of refugees threatened “Europe’s Christian roots” and the decision of Czech officers to use indelible ink to write numbers on the hands of refugees, reminiscent of the Nazi tattooing of Jews and other minorities, being especially odious examples.

But the proverbial tide does seem to have turned. Pro-refugee marches in Vienna, Icelanders demanding that their government let them open their homes to refugees, and English and German football fans displaying banners welcoming refugees to join them at matches seem to have paved the way for the momentous announcement by Austria and Germany that those countries would open their doors to refugees trapped in Hungary. German Chancellor Merkel has emerged as the voice of reason, rightly insisting that the protection of refugees “is morally and legally required” of all state parties to the Refugee Convention.

What now?

First, it is important not to simply go back to “business as usual” when the immediate humanitarian emergency ebbs. The current pressures will abate as some states – inside and beyond Europe, as recent French and Argentinian responses attest – will inevitably follow the Austrian and German lead and open their doors to at least some refugees. The impending arrival of winter weather will moreover stymie the ability of many refugees – in particular, the most vulnerable – to travel to safety. While relative calm has historically inclined governments to return to their protectionist ways, the failure to seize this moment to minimize the risk of future protection tragedies would represent a serious ethical lapse.

Second, we must be clear that there is no need whatever to renegotiate the UN’s landmark Refugee Convention. Its definition (“a well-founded fear of being persecuted” for discriminatory reasons) has proved wonderfully malleable, identifying new groups of fundamentally disfranchised persons unable to benefit from human rights protection in their own countries. At least as important, its catalog of refugee-specific rights remains as valuable today as ever. The underlying theory of the Refugee Convention is emphatically not the creation of dependency by hand-outs, much less the ongoing detention of refugees in camps. It is rather oriented to enabling refugees to become self-reliant through mobility, education, work – and includes rights that speak quite specifically to the real vulnerabilities and needs of those forced to live outside their own national community. It would be a travesty of epic proportions to contemplate the renegotiation of this treaty.

This leads to the critical third and most important point. Not only governments – but most tragically, even the international refugee agency, UNHCR – have been inattentive to the fact that the drafters of the Convention never intended the treaty to operate in the atomized and uncoordinated way that has characterized most of its nearly 65-year history. To the contrary, the Preamble to the Refugee Convention expressly recognizes that “the grant of asylum may place unduly heavy burdens on certain countries,” such that real global protection “cannot therefore be achieved without international co-operation.” Action to realize this promise in the Refugee Convention’s Preamble is more important now than ever.

It is, of course, patently unfair that countries such as Greece or Hungary be expected to assume most of Europe’s responsibility under the EU’s so-called “first country of arrival” rule, which forces refugees to stay in the first place they arrive – whatever that country’s resources, and whatever protection is realistically available there (or not). But in all of the talk about the European refugee crisis, we have lost sight of the fact that just three countries bordering Syria – Jordan, Lebanon, and Turkey – have received more than ten times as many Syrian refugees as the rest of the world combined. Indeed, more than 80% of the world’s refugees live in countries of the less developed world and are guaranteed no financial support from wealthier countries. Nor are these front-line states meaningfully assisted by resettlement. Of the roughly 14,000,000 refugees in the world last year, only about 100,000 were resettled – with just two countries, the United States and Canada, providing the lion’s share of this woefully inadequate contribution.

Nearly twenty years ago, I had the honor to lead of team of lawyers, social scientists, nongovernmental activists, and governmental and intergovernmental officials – drawn from all parts of the world, and including refugees themselves – who worked for five years to conceive the model for a new approach to implementing the Refugee Convention. Despite the fact that consensus on a comprehensive means to operationalize the treaty was reached, no action was taken by either the UNHCR or governments to move the project forward on the international stage. While the model we conceived can no doubt be improved, I believe that it offers a sound basis to launch the effort to devise a more managed system of global refugee protection, predicated on true and dependable sharing of burdens and responsibilities.

First, we should plan for, rather than simply react to, refugee movements. Specifically, drawing on insurance-based logic, the international refugee system should commit itself to predetermined burden (financial) sharing quotas; pre-determined responsibility (human) sharing quotas; a revitalized UNHCR to administer quotas, with authority to allocate funds and refugees based on respect for legal norms; and encouragement of a shift to common international refugee status determination system and group prima facie assessment to reduce processing costs, thereby freeing up funds for real and dependable support to front-line receiving countries.

Second, we should be clear that this is a system for which migration is the means to protection, not an end in and of itself. This means that there must be no barriers to entry – refugees should be understood to have the right to arrive wherever they are able to reach, and that there should be no penalties for unlawful arrival or presence, though managed entry regimes ought to be promoted where feasible. Without barriers to entry, the market for smugglers and traffickers will be significantly reduced: people mortgage their futures and risk their lives now only because there is in most cases no realistic alternative to gain entry to a safe country. On the other hand, protection for duration of risk should be the operational norm, with immediate permanent integration required only in exceptional cases (unaccompanied minors, torture victims, etc). Mandated repatriation should be understood to be permissible where the cessation standard is met within 7 years of arrival, routinely accompanied by a guarantee of repatriation and development assistance. But if refugee status cannot be lawfully ended on the basis of a durable and fundamental change of circumstances at the 7 year point, residual resettlement or local integration must be guaranteed to those still at risk, enabling them to remake their lives with security.

Third, as an interstate regime, refugee protection should be operationalized in a way that maximizes its compatibility with state interests. Under the model, there is no necessary connection between the place in which a refugee arrives and first presents her claim and the country where – assuming she is a refugee – she would benefit from protection for the duration of risk. By severing the connection between the place where a refugee arrives and the state in which protection is afforded (for example, a refugee arriving in Miami might be protected in Costa Rica) the logic of disguised economic migration via the refugee procedure is undermined. We should also harness the ability and willingness of different states to contribute in different ways. Rather than asking all states to take on the same protection roles, the core of the renewed regime should be common but differentiated responsibility. Beyond the common duty to provide first asylum, states could assume a range of protection roles within their responsibility-sharing quota (protection for duration of risk; exceptional immediate permanent integration; residual resettlement).

All states would, however, be required to make contributions to both (financial) burden-sharing and (human) responsibility-sharing, with no trade-offs between the two. If we are serious about avoiding continuing humanitarian tragedy – not just in Europe, but throughout the world – then the present atomized and haphazard approach to refugee protection must end. The moment has come not to renegotiate the Refugee Convention, but rather at long last to operationalize the treaty in a way that works dependably, and fairly.

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    Professor Geoff Gilbert says

    September 14, 2015

    There is a lot here that cannot be gainsaid: that the flow of refugees is not just an issue for Europe, but the world; that the current resettlement programme cannot meet demand or fulfil its role as a sustainable, durable solution; and that refugee status is (and always has been) temporary under the 1951 Convention and that that treaty is not up for renegotiation.

    However, some of the proposals preserve the "muddle" and, indeed, add to it.

    First, the majority of persons of concern to the UN High Commissioner for Refugees are still internally displaced persons and this set of proposals does little or nothing for them. And it is not possible to look at the refugee crisis and separate it out from those who are internally displaced since in many cases they have just chosen different locations to escape the conflict and in others the refugees are mixing with IDPs in the state of refuge.

    Even when one confines the discussion to refugees, those who have crossed an international border, the response is not going to resolve any flow of persons in the short term or long term. Refugees have been let down, by states not offering protection and, even where they do, failing to meet all their rights, although this might be down to the strain placed on the state that is not being shared by the rest of the international community. UNHCR is also being failed by states, in terms of not fulfilling their international obligations under treaties they have voluntarily ratified, in terms of inadequate funding and funding mechanisms, and by other UN actors who have not always included refugees and other displaced persons in the development plans for states. Moreover, Professor Hathaway's recommendation seems to ignore the fact that refugees retain rights even if they have been displaced - it is not for some international programme to ship them around the world like some 'package' that went to the wrong address: "(for example, a refugee arriving in Miami might be protected
    in Costa Rica)". It is not an "interstate regime", it is a human rights regime.
    And the proposed new mechanism that seeks to ensure burden sharing, a worthy and undeniably essential objective, will simply be too complicated to prove effective. If all states are to be required to meet responsibility-sharing with different protection roles, how many bureaucrats will be needed, rather than UNHCR protection officers in the field ensuring that those in need have their rights met.

    The seven year plan might seem like one that will ensure there are fewer grandchildren born in refugee camps, but it fails to respond to the dynamic character of the crises that prompt movement and it undermines the autonomy of refugees - seven years is an entirely arbitrary timeframe and one that does little to produce a solution acceptable to all. Refugees should be given the capacity within states to undertake education and employment opportunities, as proposed, so as to put them in a position to find a durable and sustainable solution - to that end, the Solutions Alliance is enhancing state capacity, empowering displaced individuals and operationalising interoperability within the UN and between the UN and states and civil society.

    The so-called crisis (see this post on "Why Europe does not have a refugee crisis") is one down to an out of date allocation process within Europe. If states fulfilled their international obligations under the 1951 Convention, including accepting the supervisory function of UNHCR set out in Article 35 and that UNHCR has the internationally accepted role of providing international protection to refugees under its Statute because they cannot or are unable to avail themselves, as they ought to be, of the protection of their country of nationality, and properly funded UNHCR so that it could allocate resources as it's mandate provides, then many of these crises for refugees would be greatly reduced. In the end, though, it is the abject failure of the Security Council to respond to the Syrian conflict that has left states in the region and beyond and UNHCR picking up the pieces.

    James Hathaway says

    September 15, 2015

    I thank Prof. Gilbert for his speedy response. Many of the answers to his concerns are in the Harvard article (http://repository.law.umich.edu/articles/1622/) or in the social science background studies, published as Reconceiving International Refugee Law (http://www.brill.com/reconceiving-international-refugee-law). I appreciate that it would have been unreasonable to expect anyone to have (re)read these discussions before engaging so quickly with my post, but do encourage anyone interested in this issue to do so.

    I will restrict myself to three points of response.

    First, I disagree quite fundamentally that it is somehow wrong to try to fix the refugee regime without finding answers for others, including IDPs. This is a bit like condemning the Women’s Convention because it doesn’t remedy the situation of children or the disabled (with whom women may be in practical terms associated). I have elsewhere elaborated the point that relying on the superficial commonality of displacement to agglomerate refugees and IDPs is sloppy – indeed, dangerous – thinking (J. Refugee Stud. 20, no. 3 (2007): 349-69). In short, there are major differences between refugees and IDPs in terms both of the ability of the international community to guarantee a remedy and, most important, the nature of the rights that are required. Refugee rights are about responding to the special risks of disfranchisement that follow from alienage – a situation not faced by IDPs. IDPs are in pith and substance internal human rights victims, and their needs should be addressed as such – and without privileging the displaced over the non-displaced human rights victims.

    Second, I reject entirely the allegation that the reformulation model is somehow not attentive to refugee rights. To the contrary, it is modeled specifically with a view to ensuring those rights, a situation which does not prevail under the present atomized system. On the specific issue of responsibility sharing, Prof. Gilbert errs if he suggests that refugees have a right to stay in their first or preferred country of asylum. What they have is a right to be protected in accordance with international legal standards – which the reformulation model, unlike the present system, has clear incentives to ensure. Nor is the 7-year cutoff for repatriation in any sense arbitrary. The social science studies for the reformulation model drew on psychological studies to identify 5-7 years as the maximum time that an impermanent – even if rights-regarding – status was acceptable. We therefore built a model that provides every refugee with access to permanent resettlement or local integration at that point.

    Third, while Prof. Gilbert is correct that this model will not provide a short term solution to the failings of the refugee system, I believe he is unduly pessimistic that it cannot provide a medium term answer. Indeed had UNHCR and states begun work on testing and refining the approach in 1997 we might well have not have been confronting the current mess in Europe and elsewhere. Prof. Gilbert’s plea in contrast seems based on the same tired rhetoric of root causes and humanitarianism that has not delivered rights-regarding answers to this or most other recent refugee flows, and which has distracted the UNHCR from its core mandate of refugee protection.

    Jakob Cornides says

    September 16, 2015

    I find it difficult to discern any genuinely legal argument in Mr. Hathaway's post; instead it appears to be a political opinion piece. Is this really suitable for this blog?

    And while Mr. Hathaway of course has the right to hold and promote even the most unusual opinions, there are limitations to what can be considered an acceptable use of language. I find it astonishing that concerns over Europe's moral heritage can be light-handedly dismissed as "odious". Does the author really believe that mass immigration of migrants from predominantly Muslim countries will remain without impact on the receiving societies? How many Muslims would he accept to settle down in Michigan, perhaps without any control of their eventual affiliation with IS and similar groups?

    Worse than that, his comparison of the Czech authorities' attempts to keep track of illegal immigrants (who, as it appears, are absolutely uncooperative in this regard) with the Nazi Holocaust is not only out of place, but indeed shameful.

    Really, I fail to understand why such a contribution, which is inappropriate both in style and content, can be published here.

    On substance, I do not believe it can seriously be argued that the status of war refugee confers one an entitlement to settle down in the country of one's choice. I also find plans to distribute refugees according to a fixed quota (within the EU or worldwide) hardly realistic. If for example a refugee who wants to go to Germany is, in function of such a quota, ordered to go to Bulgaria, how will the Bulgarian Government (even supposing it accepts the quota idea) ensure he stays there? Would that not require to put him into a detention camp, or to close and control all borders - solutions that are quite unlikely to find the approval of our refugee law expert?

    Geoff Gilbert says

    September 16, 2015

    There comes a point in the life of a blog when you really need to move to writing an academic article that can be properly footnoted and where the nuanced legal arguments can be teased out. This discussion is headed in that direction. Whilst composing this response, more than once I wanted to be able to insert a 10 line footnote. Nevertheless, some of the issues in this debate can be addressed, even if the full arguments are actually much more complex.

    First, there are several issues on which Professor Hathaway and I would undoubtedly agree: the response of the international community over the past years and months in the face of the movement of peoples beyond borders has been inadequate, and both of us want to see an improved effort by states to meet the rights of refugees as set out in the 1951 Convention. The scenes on the Serbia-Hungary border on last night's television news should appal us all. There are also elements where our approaches complement each other: he wants greater burden-sharing and I would want greater interoperability within the UN to facilitate that in terms of development programmes for states that recognise they are hosting refugee populations. However, there are some fundamental differences in approach, at least on the face of it - and here, I admit, the limitations of a blog may mean I am misreading some of his ideas.

    To start, international law recognises that states can control their borders - it is almost a fundamental tenet of statehood if that includes the idea of a defined territory. The 1951 Convention, however, provides that those who access the territory of a state can seek refugee status there (oh for a 10 line footnote). As we agree, refugee status gives rise to a range of rights, the most important of which at time of entry is non-refoulement, the right not to be sent back to the frontiers of a territory where the refugee's life or freedom would be threatened. Under a strict interpretation of the 1951 Convention, they could be relocated somewhere else, but only if the refugee has a right of access there or there was some agreement between the receiving state and the state of relocation - and if it is the latter scenario, the responsibility of the receiving state would be retained. To demonstrate the problems with Professor Hathaway's idea that refugees could be relocated so as to ensure burden-sharing, an indirect analogy might be drawn with Australia's refusal to process applicants who arrive by sea on Australian territory such that refugee status determination is carried out in other countries, such as Papua New Guinea or Nauru. PNG and Nauru are parties to the 1951 Convention and the ICCPR, so one could imagine that prima facie they would be safe places for relocation. However, PNG criminalises homosexuality, putting those sent there for RSD by Australia at risk depending on their sexual orientation and, in some cases, has led to applicants for refugee status being afraid to reveal the reason for flight (see J McAdam and F Chong, "Why Seeking Asylum is Legal and Australia's Policies Are Not", UNSW Press 2014). One can foresee the problems with trying to move refugees to other states where they ought to be protected - there is absolutely no administrative saving whatsoever in Professor Hathaway's regime that first decides whether you are a refugee and then decides to move you on. Furthermore, no matter how much he describes it as a system that respects refugees' rights, this is a state-centric model that moves refugees around as best suits states (even given that one might ever obtain the agreement of states to accept relocation from a richer state to one more economically challenged). While Articles 12 and 13 of the ICCPR cannot be applied to refugees without examining the national laws of the state in question, there will be states where refugees would be treated as "lawfully within the territory" simply because they are applying for protection under the 1951 Convention; given that, they should not be 'moved on' if they are seeking refugee status if that is where they have chosen to apply.

    As for the seven year timeframe, from when should it start to run? From when the person first crosses an international border, such as from Eritrea to Ethiopia, from the first time they spend an extended period in a state before moving on, such as whilst waiting to cross the Mediterranean, from the time of applying for refugee status, from when it is granted, or from arrival in the country of relocation if that is the result of Professor Hathaway's enforced burden-sharing? Much better, as Professor Hathaway and I agree, that refugees are accorded access to education and employment opportunities under the 1951 Convention so that whenever it is safe or the chance for resettlement or integration arises, the refugee is well situated to assume a life back home or elsewhere. Those opportunities and chances will be much more likely to be available if the development plans of states are always designed with regard to any displaced populations on the territory - UNHCR should not be put in the position of operating a parallel state structure because there is no other way to provide assistance to refugees.

    As for IDPs and refugees, of course there are separate regimes for their protection because of the very nature of their different displacements. However, that does not impact on solutions for their very similar scenarios, especially when populations are so often mixed at that point. Whether UNHCR should have a role with IDPs is a question that is not simply tired, it is dead and buried: it is a fundamental element of their extended mandate and one that allows them to address holistically the problems arising from displacement. Can anyone question with respect to the peace process underway in Colombia that UNHCR should treat differently the six million IDPs from the refugees in Ecuador, Venezuela and Central America, along with those in Europe and North America, when seeking to help all the parties resolve the consequences of a fifty year conflict. If there is a 'muddle', it is in not recognising that the rights regime for those displaced and the solutions for that displacement are related but different aspects arising from a single cause: thus separating out refugees is an academically valid exercise with little practical relevance.

    As for root conditions (I prefer that term along with many social scientists, rather than looking for causes), if one wishes to preserve the 1951 Convention and protect refugees, then one is forced to consider why they have a well-founded fear of persecution (a broader concept than just human rights violations and one that better embraces those fleeing the conflicts driving the refugees seen in television news footage) on account of race, religion, nationality, membership of a particular social group or political opinion. Having considered the conditions giving rise to flight, though, the next step is to grant them their rights and to seek solutions that respect their autonomy and the role of UNHCR in providing them with international protection while they are unable or unwilling to avail themselves of the protection of their country of nationality.

    Marko Milanovic says

    September 16, 2015

    Jakob,

    Whether a piece contains sufficient legal content and is appropriate for this blog is a judgment for the editors of this blog, and not for you. This is not the first time that you have taken it upon yourself to comment whether this piece or that is publishable on EJIL Talk, which, I repeat, is not a judgment for you to make, and certainly not a judgment for the blog's comment section. Obviously you are free to say whatever you want elsewhere - it's a free Internet - but not here. Condescending comments such as these can only serve to derail a discussion, which in your case they have done a number of times in the past. Please consider yourself warned that further comments in this vein will not be tolerated and will be promptly deleted, and that you yourself may be banned from commenting.

    Jakob Cornides says

    September 16, 2015

    Marko,

    are you the editor who found Hathaway's Nazi comparison suitable for publishing?

    Maybe you should assume your responsibility for it rather than trying to silence criticism.

    Dapo Akande says

    September 17, 2015

    Dear Mr Cornides,

    The tone and contents of your comments on this blog do not conform to the standards of civility that we expect on a serious forum such as this (or indeed those that should be expected in any decent place). We will not tolerate ad hominem and personal comments directed at authors or those who post comments here. Such comments will be deleted. The comments function is intended to promote intelligent discussion, and exchange of ideas on the substance of the issues raises. It is not a venue for conducting personal attacks. In addition, bemoaning the publication of a post does not advance the discussion in any way.

    You should regard this a further (and final!) warning that you should cease and desist from intemperate, indecent, and, frankly, unhelpful, comments.

    Jakob Cornides says

    September 17, 2015

    Dear Dapo,

    indeed I believe that this blog should be a place for intelligent discussion. But this is not (any more) what I find here.

    I do not believe anybody reading this exchange would qualify my comments as "personal attacks", or find them particularly inappropriate to what is being commented upon. Instead, most readers will wonder what made you publish a piece that denounces concern for Europe's Christian roots as "odious" (rather than respecting these as a valuable resource that should be preserved) or, even more astonishing, that equiparates "the decision of Czech officers to use indelible ink to write numbers on the hands of refugees" with "the Nazi tattooing of Jews and other minorities".

    Even accepting that there might be considerable room for improvement in the Czech officers' way of dealing with the situation, how is this even remotely commensurate? Do I really need to explain to you (and other readers) that the uniqueness of the Nazi Holocaust consisted not in painting numbers on people's hands, but in sending them into gas chambers?? Is it even remotely acceptable to suggest that the Czech officers mentioned in Hathaway's post had similar intentions or a similar mindset as the SS guards at Dachau or Auschwitz? I continue to think that such language is outright scandalous and I am astonished that you seem to consider it acceptable and lash out at the critic instead.

    It is true that my criticism of this post is directed not only against the author, but also at the editors, and I am aware that this troubles you and Marko. But your first responsibility as an editor is not to silence critics, but to ensure that the (original) contributions on this blog respect some basic standards of quality both regarding and content.

    So, if you really want this to be a blog in which silly Nazi-aspersions are liberally handed out to all those who happen not to share your authors' political stances, then please let me know. I will take note and simply stop reading. But don't pretend that such a blog would qualify as a "decent place".

    I also continue to think that besides his unfortunate Nazi-comparisons Mr. Hathaway's piece suffers from another very fundamental defect, i.e. that it advances no genuine legal argument. It does not really say that international law provides for what he is proposing, but he says that it should be changed according to what he thinks is politically desirable. His proposals are however far from realistic: they are not even remotely likely to be accepted in the fist place - but even if they were one does not see how they could actually be enforced.

    The general problem for any suggestion to change the system is that the rights of refugees must be balanced against the rights of receiving countries, and and that for both there must be appropriate mechanisms of enforcement. Besides the question who has, and who has not, a rightful claim to refugee status (something that a receiving state clearly has the right to verify!), the current crisis is to quite a considerable extent due to the fact that many asylum seekers appear to not bona fide co-operate with the authorities of the countries to which (or through which) they are migrating. Any proposal for a system change needs to offer a credible solution for this kind of situation, but I do not see one in Mr. Hathaway's text.

    Anyway, I do not want to spend more time on this. I think I am quite helpful in suggesting that, rather than sending (final!) warnings to me, you might give a more careful reading to the texts that are proposed to you as original blog contributions.

    Miroslav Baros says

    September 17, 2015

    Discerning a legal issue and argument is, unfortunately becoming an issue on this blog! May I, with a degree of trepidation try to inject a bit of the missing substance into to the discussion.
    In Saadi v Secretary of State, 2004 and Saadi v UK, 2006 both the House of Lords and the ECtHR based their whole legal argument that states have, under "general international law", the right to refuse entry to an individual and that asylum process is an implementation of that fundamental right. In particular context detention of asylum seekers was challenged under Article 5. The claim was rejected by both courts, who, to my own perception I have to say gave a surprisingly high emphasis on the concept of national sovereignty. Essentially, both courts opined that detaining people for administrative convenience does not violate Article 5. Relevant to the current discussion is that the courts implicitly acknowledged that detention, in all other circumstances may easily engage Article 5 ECHR, confirming a unique nature of immigration law and the inevitable discretion in effectuating control of entry.
    I wish to suggest the application of this law (there were many similar unsuccessful claims after this case) to the current situation, even if my vision of this attracts criticism by campaigners and those whose legal argument and analysis are affected by the tragic images. The ratio decidendi of the decisions is that states enjoy, in the field of immigration a higher degree of latitude in terms of compromising human rights standards than in other areas of public life. My argument is this: states are, under international law entitled to determine who can, legally enter their territory. To suggest anything otherwise would be rather bizarre if I may suggest.
    Turning to the present episode (I believe I am not missing an important point here) I am discerning, not a lack of legal argumentation, but a level of remoteness and inapplicability of the arguments and suggestions presented to the actual situation so to speak. Why do I say this? May I start by suggesting that the numbers of people trying to reach (Germany basically) in this instance play or should play a major part in formulating an appropriate legal response. Examining an asylum claim is a highly individualised process; it requires knowledge and information from the country of origin; the relevant authorities must be satisfied that both objective and subjective reasons for the claimed fear of persecution exist. This requires cooperation by the claimant and significant amount of time. What the states concerned in the present crisis are asked by those individuals is to abolish their immigration control altogether and grant them entry without carrying out the required process and implementing their fundamental right referred to in the Saadi case! I have to pause for a moment and speculate if an individual would be tolerated by any state's authorities who would simply turn up at the border, refuses to be identified, refuses to state reasons for arrival, refuses any cooperation with the authorities and even inflicts criminal damage to the state concerned? Of course not. We therefore need to appreciate that what differentiates this situation from others is the numbers of people and their (unified) intention in terms of reaching a destination. We have seen that all those people specifically want to reach Germany, not Greece, Bulgaria, Serbia, Romania, Croatia, Hungary, not even Austria, but Germany only. Bearing this in mind I do not see the relevance of burden sharing of quotas among the EU states I have to admit. So, the discussion should focus on formulating a legal response to dealing with the arrival of large groups of people wanting to reach a particular country rather than burden sharing and providing other form of assistance to the immigration states.
    May I end this post by a non-legal observation: I think the comparison with the Nazi tattooing is inappropriate, unnecessary and unfortunate for the reasons I outlined above; I feel that the people who were tattooed by the Nazi regime would find the comparison offensive.

    Kriangsak Kittichaisaree says

    September 18, 2015

    I would like to touch on the issue of 'burden sharing' from the perspective of the first country of arrival. Just think of the hundreds of thousands of 'Vietnamese boat people' of 1978-1980 who fled to Indonesia, Malaysia, Singapore, and Thailand, none of which was/is party to the 1951 Refugee Convention. At one point, Thailand sheltered more than one million nationals of neighbouring countries. The Southeast Asian 'first countries of arrival' pled to the international community for 'burden sharing' and resettlement of these persons who, according to their respective domestic laws, were 'illegal aliens' subject to expulsion/deportation but who were considered 'refugees' by Western European nations and the rest of the Western world which insisted that, under 'customary international law', the persons were not to be 'refouled'. It took several decades before camps sheltering them in SE Asia eventually disappeared.

    Will the governments and citizens of those nations which once asked the SE Asian first countries of arrival to protect the Vietnamese boat people and others fleeing ordeals at home take comparable measures vis-à-vis the 'refugees' now at your door or in your backyard? You took the moral high ground in the 1970s-1990s; will you abandon it now?

    Draft Art. 6 of the International Law Commission's draft articles on Expulsion of Aliens reads:
    "Prohibition of the expulsion of refugees
    The present draft articles are without prejudice to the rules of international law relating to refugees, as well as to any more favourable rules or practice on refugee protection, and in particular to the following rules:
    (a) a State shall not expel a refugee lawfully in its territory save on grounds of national security or public order;
    (b) a State shall not expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion, unless there are reasonable grounds for regarding the person as a danger to the security of the country in which he or she is, or if the person, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

    Would you consider this draft article a rule of lex lata or a merely fanciful aspiration?

    Alessandra Asteriti says

    September 18, 2015

    In defence of Professor Hathaway, the reference to Nazi practices against the Jews and other concentration camps prisoner was made widely in the news (two links here http://www.bbc.co.uk/news/blogs-eu-34128087; http://www.nytimes.com/2015/09/04/world/europe/czech-republic-criticized-after-officers-mark-migrants-with-numbers.html?_r=0) and criticised, amongst others, by Holocaust survivors groups. It is not, as I read it, a comparison he made, but a comparison that was widely made and that he reported.

    Miroslav Baros says

    September 18, 2015

    I never discuss or use newspapers' articles in trying to make a substantive point.
    The current episode, from public sympathy and apprehension point of view, at least in the UK, can be compared to the mass arrival of Jews in the early 1900s in the UK. We know very well what the response was and I can't dwell on that here.
    I am talking about processing those peoples' claim; what is exactly the reason for asking the entry; their identity etc. not about the law itself. I don't think the Draft Article is too inspirational; in Europe we have an additional protective concept of subsidiary protection as initiated by a EU Directive 2004; or Article 18 European Charter on Fundamental Rights, envisaging the right to asylum. The law is fine; it is developing and reflecting, what I would term moral values of the 21st century; the problem is applicability and implementation. Which document do you apply and how? Do the current migrants rely on the Refugee Convention demanding to enter Germany?
    May I, risking a harmful trivialisation make the following comparison: I knock on my neighbour's door, or on somebody's living further away and ask to be admitted inside; my neighbour asks: "Why should I let you in?" "None of your business" I reply; "Your home is nice and big and I want to enter it". What is my neighbour supposed to do? Are they allowed to check my reasons? OK, I need to include the non refoulement bit here. My neighbour accepted not to return me home because my wife threatened me…but he needs to know if I am telling the truth - and this is the main point: How to determine the factual background to the claim - am I really a refugee or am I looking for a better life; from a moral point of view I guess either is fine, but my neighbour needs to know which one to apply. In the former case the neighbour should apply the Refugee Convention in the latter her/his internal rules (domestic immigration law). That is what I am suggesting here and what is missing in the current debates/reactions sparked by the horrific images.
    So, again to me it is not about burden sharing in this instance because the migrants want a specific country.

    Jakob Cornides says

    September 18, 2015

    A draft article cannot as such be a lex lata, but I do think that the text you quote indeed represents what is generally accepted as an international law standard.

    The principle that refugees should seek shelter in the country of first arrival is as such conducive to burden sharing, given that the country of first arrival will not be the same for all refugees from all war zones. By contrast, if the asylum claimant were completely free to select the country that must receive him, then it is likely that nearly all refugees would seek shelter in one and the same country (which, as Miroslav has pointed out, is what we currently see happening).

    The situations do not seem comparable. While Thailand was the country of first arrival in the case of the Vietnamese "boat people", Hungary and Serbia are not the countries of first arrival in the case of Syrian refugees.

    All this does of course not mean that no efforts should be made to share the burden.

    Geoff Gilbert says

    September 18, 2015

    To start with Kriangsak Kittichaisaree's comment, it is very appropriate to bring up the acceptance of the displacements in the late 1970s and 1980s in SE Asia and the CPA that eventually operated in the region - Professor Goodwin-Gill has been urging such a global and regional response for some months. It is completely unfair to talk about the effect on Europe (for which read the EU) and ignore the way Jordan, Lebanon and Turkey have shouldered most of the Syrian outflow. The same generosity can be seen in countries in SE Asia, in Africa and, particularly in the recent past, Pakistan and Iran, all with regard to the displacements in neighbouring countries. Thus, Europe can be expected to do a lot more if the burden is to be properly shared (see this post on “Why Europe does not have a refugee crisis” ). And, as the commentary on the Draft Articles makes clear, Article 6 is based on Articles 32 and 33 of the 1951 Convention; it also draws on some of the language of Article 3 of the UN Convention Against Torture. Thus, it is based on international obligations already accepted by three-quarters of the states on the planet. The problem with Article 6 is the reference to "lawfully in", an issue hinted at above in my second post (see also, UNHCR's "Note on the personal scope of Article 32 of the 1951 Convention Relating to the Status of Refugees: the meaning of 'lawfully in'", of 9 July 2012, available at RefWorld). In the context of Draft Article 6(b), based on Article 33.1, that must refer to anyone presenting themselves as a refugee until it has been determined following fair access to a fair refugee status determination procedure, that they do not qualify. UNHCR argue in the note for a "liberal and flexible" interpretation of "lawfully in" and go on in paragraph 3 to propose that Article 32,
    "should also be extended to asylum-seekers lawfully in the territory of a contracting State, including those who have entered the country illegally but have since entered the asylum procedures and may therefore be considered as 'authorized' to be present in the territory of the country."
    Therefore, the Draft Articles on the expulsion of aliens would apply to those seeking protection.

    While states can control entry to their territory, as was noted by Professor Hathaway and me at the start of this debate, under the 1951 Convention refugees have the right not to be refouled. Given that refugee status is declaratory and not constitutive, states must assume that persons seeking refugee status fall within the Convention until some fair process (the Convention does not lay down any procedure but leaves it to states - see paragraph 189 of the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, first issued by UNHCR in 1979 and reissued in 2011 and available on RefWorld). That, though has not been the issue in Europe in the past week or so - what we have seen there is the closure of borders by states that have voluntarily assumed the obligation to consider those who make it to their territory to assess their claim to refugee status. Razor wire, water cannon and tear gas do not seem compatible with the fundamental underpinning of that process, Article 14 of the Universal Declaration of Human Rights 1948, which provides that all human beings have the right to seek end enjoy asylum.

    To conclude, Professor Hathaway and I never engaged in a debate on the practice of some European states (notably not Turkey) to close their borders. We were looking at how refugee populations could be more effectively protected, accorded the rights set out in the 1951 Convention on matters beyond refoulement, such as access to employment and education, and how the global community might share that burden, basing our arguments on a wealth of law, hard and soft. As Chancellor Merkel has made clear, it cannot be left to Germany, Austria and Sweden, nor Lebanon, Jordan and Turkey. As I indicated previously, this debate is worthy of an article - I am engaged in completing one that touches on some, but not all, of these issues, so this is my final post.

    Miroslav Baros says

    September 18, 2015

    Somebody please correct me if I am wrong. I do not see how can Hungary, Croatia, Slovenia, Austria, Greece, Serbia and Slovenia apply the Refugee Convention to these groups of people when they are not seeking asylum in those countries? Quite opposite, they desperately try to avoid processing or making any claim in there. How can Hungary, for example apply the Convention when all the migrants refuse to cooperate in any way with its authorities? You are not suggesting that the Convention should be applied contrary to the expressed will of the entrants? When asked by a news reporter the other day why he would not apply for asylum in Hungary the guy responded: "Hungary is not a stable and rich country". How can Hungary, for example comply with non-refoulement when those people are not seeking refugee status there (to state Gilbert's passage here: "Given that refugee status is declaratory and not constitutive, states must assume that persons seeking refugee status fall within the Convention…emphasis added). Hungary has hostile groups of people who simply ignore the authorities and refuse any cooperation; they are not communicating with authorities nor are they applying for asylum there. I think this fundamental aspect in this chronology is missing and it is essential to bear in it mind before declaring that a country has violated the Convention.

    James Hathaway says

    September 20, 2015

    Please let me begin a final contribution to this conversation by thanking everyone who engaged the substance of my arguments. It’s critical that this conversation be happening now, especially given the recent openness of the Commission’s President to a more fair-minded system to replace the Dublin “accidents of geography” approach.

    Responding first to Miroslav Baros, you are of course correct that leading courts have routinely (if perhaps without much reasoning) assumed that the right to exclude non-citizens is a fundamental incident of sovereignty. But states can – and have done via eg. accession to the Refugee Convention – choose to limit that sovereign authority. This does not mean that detention of those claiming to be refugees is never permissible. To the contrary, Art. 31(2) of the Refugee Convention does allow strictly provisional detention to eg. verify identity and security concerns you mention, though it does not allow ongoing detention – thus striking exactly the sort of balance between the interests of refugees and those of states that you sensibly suggest is required. My view is that the Saadi court adopted an overly broad notion of “necessary” detention when it approved of detention for reasons of administrative efficiency (thankfully not all courts agree with Saadi: see eg. the NZ Court of Appeal in Zaoui which opined that full detention could only be “necessary” where an element of fault on the part of the refugee was shown). But the crucial point is that the Refugee Convention provides a sensible legal framework within which the limits on sovereign authority to deal with involuntary migrants can and should be adjudicated.

    I can’t agree with the view of Jakob Cornides that the Dublin Regulation’s “first country of arrival” rule is conducive to burden (I would say responsibility) sharing. To the contrary, the assignment of protective responsibility it posits bears no relationship to the capacity of the asylum state, much less to whether real protection is on offer there. As much has recently been recognized impliedly in decisions of both the CJEU and ECHR, and most clearly in the comments of President Junker. I agree with Kriangsak Kittichaisaree that the experience of the CPA for Indochinese refurgees (and indeed of ICARA in Africa, and CIREFCA in Central America) provides a more principled model for thinking about how best to operationalize the formal commitments in the Refugee Convention in a way that is sustainable and balanced. Indeed, these are precisely the models upon which the reformulation project I led drew in defining its own framework for a more managed and collectivized approach to implementing refugee law.

    Finally, I am grateful to Geoff Gilbert for continuing to engage the arguments. We in particular agree that refugee responsibility-sharing must be reliably rights-regarding – and not remotely like the dumping of refugees by Australia in PNG or Nauru. I again encourage him to (re)read the reformulation model which provides reliable guarantees against precisely that possibility – something not built into the way refugee law is presently operationalized. As will be clear to any reader of The Law of Refugee Status (2015), I take an uncompromising position that tight constraints must accompany assignments of protective responsibility – perhaps even more exigent than those suggested here by Prof. Gilbert.

    On broader issues, Prof. Gilbert and I could no doubt ping-pong ad infinitum. We have very different visions. Caricaturing both of us, Professor Gilbert is the defender of the (UNHCR-defined, I would say Protestant) refugee faith: attached to an ever-expanding protection mandate, at ease with a fungible humanitarian role, and believing that refugee law should fix the phenomena that produce involuntary migration. That would make me the Thomas More (and yes, I realize that things did not end well for him, principles notwithstanding): a believer in the traditional, Convention-based view that involuntary alienage raises different concerns from displacement generally, committed to a view of refugee protection as human rights protection rather than as necessarily focused on immediate and permanent integration, and comfortable with refugee law as a palliative regime – with root causes being the province of the human rights and security systems.

    But when Professor Gilbert says that propriety of UNHCR’s dramatically expanded mandate is “dead and buried,” he errs in my view. Such engagement is of relatively recent provenance, and is in no sense a part of the agency’s statutory mandate (whereas the duty to protect refugees is elaborated in great detail and non-negotiable). Indeed, the shift of UNHCR from being an entity devoted principally to ensuring legal protection of refugees – the High Commissioner for refugees, after all! – could absolutely be reversed without any infringement of its mandate. UNHCR was never meant to become primarily a tents and blankets agency – there are dozens of other entities more than capable of playing that role (indeed, the UNHCR contracts-out much of its resources to them). But there is no other agency charged specifically with ensuring that refugees are protected in the sense of having access to rights that enable them to be come self-supporting and productive. To the extent that the broadened competence of UNHCR distracts it from fulfilling its statutory mandate, those auxiliary responsibilities must yield to its core competence.

    My point here, however, was not that UNHCR needs necessarily to abandon its decision to seek an expanded mandate nor the humanitarian work that preoccupies it. But to suggest as Prof. Gilbert does that the agency ought not to show leadership by promoting the shift to a managed global system of refugee protection until and unless all persons “of concern” to the agency can be similarly assisted is with all respect nonsense. UNHCR must show leadership on its non-negotiable refugee protection mandate now, especially given the clear political momentum to reconsider the traditional ad hoc and atomized model.

    Professor Gilbert and I are absolutely in agreement that the world would be a better place if brutal dictators and wars did not exist, and if all victims of human rights abuse (displaced or not, internal or external) were meaningfully aided. But as the platitude has it, the perfect can be the enemy of the good. The present moment offers the chance to reinvigorate the refugee protection regime in a way that ensures true, rights-regarding protection for all refugees. We should seize this opportunity to ensure that the promise of the Refugee Convention is made real for those whose lives depend, quite literally, on such progress.

    Miroslav Baros says

    September 20, 2015

    I agree with aspects of Professor Hathaway's latest participation; sensible and convincing. May I just suggest, and this is in line with, what I see a slight expansion of the original issue, that the Refugee Convention is neither a human rights document nor a commitment to limit national sovereignty. First of all, the Convention provides protection against persecution for particular reasons only (race, religion, nationality, membership of a particular social group or political opinion); war is not even mentioned! In fact, the main reason for current migration is also omitted and that is environment. This is becoming rather relevant considering that there are more displaced people as a result of climate change and natural disaster than wars. (See Teitiota, 2015 a New Zealand case where the Supreme Court of the country rejected the application of the Refugee Convention in relation to the impact of climate change).
    Secondly, a human rights approach was expanded by judicial or even academic involvement in the definition of persecution indicating exactly that the Convention's emphasis was too narrow (I am using professor Hathaway's definition of persecution for my students). Cases like: Sivakumaran, 1988; Jonah, 1985; Sandraligham & Ravichandran, 1996 expanded the notion and meaning of persecution that was originally envisaged by the Convention.
    As I suggested earlier, more protective concepts and inclusion of human rights considerations were initiated outside the Refugee Convention framework - most notably EU law developments and ECtHR's interpretation of arts. 2,3,5,6, 8,10 ECHR. It does not therefore transpire that the immigration states "can choose to limit…sovereign authority" by acceding to the Refugee Convention. Certainly, the immigration states had no such perception of the Convention in 1951. I dare even to suggest the opposite: by focusing on political reasons only so to speak as reasons for persecution, the Convention enabled the immigration states, as the developments in 1990s in Europe demonstrated very well to politicise the issue significantly by encouraging the emergence of the concepts: bogus refugees and asylum seekers, clearly unfounded claims, safe third country etc. and even criminalising this vulnerable category. Again, it was the local developments and judicial involvement rather than the Convention itself that led to, if any limitation of national sovereignty.
    But the current episode, in my view has very little to do with the nature of the Convention. There is no indication that the immigration states accepted to limit their immigration procedures by acceding to the Refugee Convention; in fact the accession has nothing to do with that: we need to determine if you qualify under the Convention as refugee and then we may "limit our sovereignty" to state professor Hathaway's description. The Convention did not intend to imply doing away with registering and interviewing people or with abandoning their border controls; retaining these rights and competences was actually necessary precisely because of the Convention's focus on the reasons for persecution: "how do I know that you have been persecuted if you refuse to talk to me?". This is the core of the present episode: groups of people in thousands turning up at the border and refusing any cooperation with authorities. They want a particular destination and nothing else. This is a new and very specific development. In this respect discussing other issues surrounding improvement of the Refugee Convention is pretty irrelevant if I may suggest.

    Jakob Cornides says

    September 20, 2015

    The first step to solve a problem is to understand it correctly. The question is whether the situation we are currently facing really is a “refugee crisis” or whether it is something completely different.

    Reading the definition Article 1 of the Geneva Convention one might very easily come to the conclusion that everybody is a refugee who claims to be one. But that is of course not so. The rights the Convention provides for refugees are couched in such a way that they pre-suppose that a receiving state must first verify if someone is indeed, as he claims, a refugee. If he is, he must be recognized as such, and if he isn’t recognized, then he isn’t one.

    Thus the Convention contains rights for people who have been recognized as refugees, but it also must contain some rights for asylum seekers, i.e. persons who have applied for the recognition of their refugee status while their application is pending.

    And then of course there are basic human rights that apply to everyone.

    Much on the line of what Baros suggests, a person who has neither obtained, nor even applied for, refugee status is neither a refugee nor a refuge seeker. It is hard to see how the Geneva Convention can apply here.

    Let’s face reality: this so-called “refugee crisis” is in fact a “migrant crisis”. This is why it will not be resolved with any quota solution. The situation countries like Hungary, Croatia, and Austria, are facing is that of an unprecedented quantity of (unarmed) invaders who do not have, and do not ask for, refugee status. Their intended destination is Germany, where they believe a new life in wealth and social security awaits them. This is of course better than the prolonged sejour in a camp somewhere in SE Turkey, even if in that camp there is no immediate risk for limbs and life.

    Both Hathaway and (in a prior contribution) Marko Milanovic have used the image of the drunken boy at Bodrum to inject emotions and good feelings into this forum. However, this has right from the outside misinformed the debate. The real tragedy here is not that some cruel bystander has been watching the child drown without making any effort to save it, but that the boy’s father has – unnecessarily and therefore unreasonably - risked and lost the lives of his wife and two children in order to migrate with them from a reasonably safe place (Turkey) into the EU. As one learned later on, his hope was to get new teeth, which he could not possibly have afforded in Turkey. As we also learned, he returned back to his native city in Syria, where he organized a burial. Frankly, when my grandparents were expelled from Bohemia in 1945, they had no possibility to return just one week later to organize a family burial.

    This is not to say that the migrants’ motives are not understandable, or that we would not ourselves try to migrate to the EU (and maybe even incur some unreasonable risks) in order to better our fortunes. But a refugee is a refugee, and a migrant is a migrant, and we need to distinguish.

    Kriangsak Kittichaisaree says

    September 21, 2015

    I think all who have joined the debate are correct, from different angles.

    From my experience in SE Asia, we do have to distinguish 'refugees' from 'economic migrants'.

    The fall of Saigon which ended the Vietnam War led to the mass outflow of Vietnamese boat people, and hardly anyone doubted their 'refugee status' even without verifying whether they had a genuine well-founded fear of persecution. That situation seems to mirror what is going on in Syria which has been driving Syrians out of their own country. The crucial question is how to deal with them in a systematic and humane manner. In distinguishing 'economic migrants' from 'refugees', the Syrians have a much stronger presumption that they are 'refugees' than (North) Africans and others whose homeland is not having on-going catastrophes as Syria is right now.

    Don't blame 'refugees'/'asylum seekers' for having preferences for their country of settlement. Camps and shelters in SE Asia took several decades to find homes for thousands of such persons partly because Western nations, understandably, had their own preference of whom they would take, giving priorities to those who already had relatives in the respective Western countries, those with professional qualifications (medical doctors, engineers, technicians etc.), and those with no record of drug addiction. The last one caused a lot of hurdle particularly for the Hmong from Laos who fought the Indochina War and who grew and smoked opium at home.

    One needs to think further. When peace returns to Syria, how should/could the erstwhile 'refugees' who no longer have well-founded fears of persecution etc. be persuaded to return home?

    Jakob Cornides says

    September 21, 2015

    Small but important correction: the boy found dead on the beach of Bodrum was of course drowned, not drunken (I was writing this late in the evening...)

    Kriangsak, I'm not blaming anyone for having preferences. I'm just saying that such preferences do not create entitlements.

    Besides, I'm not sure whether the fall of Saigon mirrors the situation that you find in each and every region of Syria. Again, the case of the drowned boy is interesting. His family came from Kobane, a Kurdish town directly at the Turkish border, which was dramatically besieged for a number of weeks, but in the end successfully defended. (That's also why, as I noted, it was easily possible for the father to return there to organize the burial.)