As thousands of Syrians abandon their country in search of a better life, more and more countries decide to restrict entry to their borders.
The numbers do not lie. UNHCR estimates that 1,805,255 Syrian refugees are in Turkey, 1,172,753 are currently in Lebanon, 630,224 in Jordan and 156,530 in Egypt & North Africa. In fact, according to Stephen O’Brien (the UN Under-Secretary-General for Humanitarian Affairs) at least 250’000 Syrians have been killed with almost half of the population having been internally displaced. The European Commission has rightfully named it the world’s largest humanitarian crisis since World War II. And as we vowed after the World War II atrocities (in several Int. Treaty preambles – see UN, NATO, EU) we should be determined to save succeeding generations from the scourge of war and unite our strength to maintain international peace and security. It is therefore certain that there is a moral obligation to act.
But is there a legal obligation?
Refugees are victims of intolerance (be it political, social, religious or ethnic) that forces them to leave their own countries for fear of persecution.
A refugee according to Article 1 of UN’s 1951 Refugee Convention is someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”
Note: A distinction is to be made between refugees, asylum seekers, legal and illegal economic migrants, minority citizens, travellers and others.
However, legally a person is not officially a refugee until the agency responsible for immigration in the host country has approved his asylum application (i.e. has verified that the above definition is applicable to that individual). Until then, the person in question is an asylum seeker by virtue of Article 14 of the Universal Declaration of Human Rights 1948, which recognises the right of persons to seek asylum from persecution in other countries.
Now if unsuccessful, their rights are reduced to what rights those who overstay their visas have. They are allowed to remain temporarily in order to appeal but once the appeal process is exhausted and they remain unsuccesful, they lose the right to remain in the host country. The protections of an asylum seeker no longer apply and they face deportation to their country of origin.
The Obligations
“No one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.”
– United Nations’ 1951 Refugee Convention
Abiding the strict and non-derogable principle of non-refoulment is fundamental as sending back an asylum-seeker that escaped his country for fear of his life may result in essentially sending him to his death.
However, as very often in life, “exceptions apply.” Certain general exceptions to the principle are, “where there are over-riding considerations of national security or it is necessary in order to safeguard the national security or protect the population”[1] and “in order to protect the community from serious danger.”[2] Under the 1951 Convention specifically, the principle does not apply in the situation of a refugee for whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
International law attaches several obligations to States.
The Refugee Convention clearly states that “If people who are in need for international protection seek a country’s safety then they must be allowed to go through a process which helps to determine if these people are in need.” Moreover, under the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention), there is an obligation for vessel masters (captains) to render assistance (rescue) to those in distress at sea including illegal migrants. As a result, any attempts to actively discourage asylum-seekers to pass one’s borders via the use of the Royal Navy (looking at you Australia) may amount to a breach of international law.
Article 7 of the Convention (exemption from reciprocity) requires that refugees are offered the same treatment as is accorded to aliens generally. Further, administrative assistance has to be provided (Article 25) as practically, refugees will often be unable to enforce their rights without such assistance from state or international authorities.
Finally, the Torture Convention[3] protects people from being subject to cruel, inhuman or degrading treatment. UN for instance has already found (guess who) Australia’s treatment of asylum-seekers to be in violation of the above convention.
It is therefore evident that States are not only under a moral obligation to react but also under a legal one. They should, under international law, rescue those in distress at sea, allow them to go through a process determining if they are capable of receiving the legal status of a refugee, and ensure they are not expelled/returned to their country of origin if they fear threats to life or freedom. And they should do so without subjecting the asylum-seekers to degrading or inhuman treatment.
1. Declaration on Territorial Asylum, Article 3(2). Principles relating to the Treatment of Refugees adopted by the -Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966 (Article III(2)).
2. Resolution of the Committee of Ministers of the Council of Europe of 29 September 1967 on Asylum to Persons in Danger of Persecution.
3. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment