Reactions to Refugee Crisis May Violate States’ International Legal Obligations
The ongoing civil war in Syria has uprooted more than in 4.2 million Syrian refugees and 7.6 million internally displaced persons, and these numbers are predicted to increase. [UNHCR Press Release] A survey of individuals at a UNHCR refugee camp in Turkey revealed that more than half of them left Syria because it is too dangerous to stay, often noting that government forces had destroyed their homes or threatened them with violence. [Washington Post] U.S. President Barack Obama stated that Syrian individuals seeking to enter the United States are “themselves victims of terrorism.” [International Business Times] Indeed, the numbers of registered refugees reported by UNHCR only include those fleeing Syria out of fear of persecution, and do not include economic migrants. See UNHCR, Refugees. Moreover, although coverage has focused heavily on the flows of people into Western Europe or across the Atlantic, nearly 90 percent of Syrian refugees have fled to neighboring countries, including Egypt, Iraq, Jordan, Lebanon, and Turkey. See UNHCR, Syria Regional Refugee Response.
However, in the aftermath of the recent terrorist attacks on Paris, some politicians in Europe and the United States have proposed limiting or stopping their countries’ acceptance of refugees and have encouraged public xenophobia. [NY Times: House Bill; Reuters: Europe; Spiegel] In response to the refugee crisis, human rights organizations such as Amnesty International have urged States to ratify the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol, establish fair asylum procedures, and ensure access to basic services, such as health and education. See Amnesty International, The Global Refugee Crisis: A Conspiracy of Neglect (2015).
Leaving aside arguments of morality and decency, this post reviews governmental reactions to this humanitarian crisis in view of their existing international legal obligations with regard to accepting and hosting refugees.
International Legal Protections
The main international instruments on refugee rights are the 1951 Refugee Convention and its 1967 Protocol. 1951 Refugee Convention defines a refugee as a person who has 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.” See 1951 Refugee Convention, art. 1. As of November 24, 2015, 145 States were party to the 1951 Refugee Convention and 146 were party to the 1967 Protocol.
Refugee Rights Are Human Rights
Under international law, asylum seekers and refugees are entitled to respect for their human rights. The range of regional and universal human rights agreements require their States parties to protect the human rights of all individuals subject to their jurisdiction, including refugees. In the words of the International Covenant on Civil and Political Rights (ICCPR), each State must commit “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” See ICCPR, art. 2(1). Governments are specifically prohibited from denying fundamental rights on the basis of national origin. This language is echoed in other United Nations human rights treaties and in the principal conventions of the regional human rights systems. See, e.g., ICCPR, art. 2(2); African Charter on Human and Peoples’ Rights, art. 2; American Convention on Human Rights, art. 1; Arab Charter on Human Rights, art. 3(1); European Convention on Human Rights, arts. 1, 14.
In addition to ensuring enjoyment of basic human rights for all persons and not discriminating against foreign nationals, States may have other explicit duties to allow refugees access to public programs and services and to extend to them the benefits of protective regulations that apply to the private sector. The text of the 1951 Refugee Convention requires States parties to treat refugees at least as well as they treat other non-citizens in the same circumstances with regard to property rights, the right of association, access to justice, employment, housing, and primary education. See 1951 Refugee Convention, arts. 13-22. States parties are required to treat refugees as well as their own nationals with regard to the practice of religion, access to secondary education, access to public assistance, conditions of employment, social security, and workers compensation. See id., arts. 4, 22-24.
Obligation Not to Expel Refugees
According to the 1951 Refugee Convention and 1967 Protocol, States parties have an obligation not to expel refugees from their territory or to return them to places where their lives or freedom would be threatened, unless the refugee poses a threat to national security or public order. See id., arts. 32, 33. Individuals reasonably believed to have committed crimes against humanity, war crimes, or other serious acts are not entitled to protection as refugees, pursuant to Article 1(F) of the 1951 Refugee Convention. Importantly, any determination regarding a refugee’s possible threat or criminal behavior must be made on an individual basis; a decision to reject a whole community or group of refugees because of a perceived, general threat would contravene international law. See 1951 Refugee Convention, arts. 1(f), 32, 33. See also ICCPR, art. 13.
Furthermore, the principle of non-refoulement (the obligation not to return a person to a place where his or her life or freedom would be at risk) is considered customary international law, meaning it applies to all States regardless of whether they have ratified the Refugee Convention. For those States that have ratified other regional or universal treaties – such as the European Convention on Human Rights, American Convention on Human Rights, or International Covenant on Civil and Political Rights – the prohibition of non-refoulement is also one of their specific international human rights obligations. Moreover, in instances where the person seeking asylum could be subjected to torture in his or her home country, many consider the obligation of non-refoulement to be part of the jus cogens prohibition of torture, meaning States are strictly bound to comply with this norm because it is such a widely accepted and fundamental principle. See, e.g., UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 26 January 2007.
Freedom of Movement within the Host Country
Refugees are generally entitled to freedom of movement within the host country. This means that the State cannot restrict their travel within the country or impose specific limitations on where refugees settle. See 1951 Refugee Convention, arts. 26, 31(2). International human rights law similarly protects the right to freedom of movement for all persons, including refugees. See, e.g., ICCPR, art. 12(1).
Refugees in Europe
All European Union (EU) and Council of Europe Member States have signed and ratified the 1951 Refugee Convention or its 1967 Protocol and these protections are implemented through the national legislation of each country. In addition to these obligations, European governments are also bound by regional standards. For example, Article 18 of the EU Charter of Fundamental Rights states, “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”
As mentioned above, the European Convention on Human Rights also prohibits States from returning an individual, whether from the border or elsewhere within their jurisdiction, to a place where he or she would be at risk of torture or inhuman or degrading treatment or punishment. See European Convention on Human Rights, art. 3. In some cases, a removal, extradition or expulsion may also violate Article 2 of the European Convention on Human Rights, which protects the right to life. See European Union Agency for Human Rights and Council of Europe, Handbook on European Law Relating to Asylum, Borders and Immigration (2014).
Most European countries have also ratified the core United Nations human rights instruments, as well, meaning that they are further obligated to protect and ensure refugees’ enjoyment of the full range of human rights, and that the UN human rights treaty bodies may review these States’ implementation of their obligations. See generally, OHCHR, Status of Ratification Interactive Dashboard.
According to International Organization for Migration, since January 2015, 898,235 migrants, including refugees, arrived in Europe and 3,519 have drowned or gone missing en route. This is considered to be the biggest refugee movement to Europe since World War II. [New York Times]
Some States have taken defensive or reactionary positions to limit the number of refugees and migrants entering their territories. Hungary sealed its border with Serbia and then started building fence along its border with Croatia in September, closing off the entryway from the Balkans into the European Union (EU). Declaring a state of emergency, Hungary also arrested numerous people for attempting to cross the border. [The Telegraph] The government later sealed its border with Romania and eventually blocked the main route to the EU that refugees had been using. Austria also applied security checks to those entering through its border with Hungary. [The Guardian]
These measures have been met with criticism from international stakeholders. In his statement, the UN High Commissioner for Refugees António Guterres stressed his concern about Europe’s failure to find an effective solution to the problem, which resulted in people’s suffering. Mr. Gutteres stated:
This is a primarily refugee crisis. … The vast majority of those arriving in Greece come from conflict zones like Syria, Iraq or Afghanistan and are simply running for their lives. All people on the move in these tragic circumstances deserve to see their human rights and dignity fully respected, independently of their legal status. But we cannot forget the particular responsibility all states have vis a vis refugees, in accordance with international law. Europe cannot go on responding to this crisis with a piecemeal or incremental approach. No country can do it alone, and no country can refuse to do its part. … The only way to solve this problem is for the [European] Union and all member states to implement a common strategy, based on responsibility, solidarity and trust.
In early September 2015, European Commission presented a comprehensive package of proposals on solving the refugee crisis. The proposals, along with other matters, considered relocating 120,000 people in need of international protection from Greece, Hungary and Italy to other EU member states. Stressing the importance of giving refuge to those who need it, European Commission President Jean-Claude Juncker said, “We Europeans should know and should never forget why giving refuge and complying with the fundamental right to asylum is so important. … If ever European solidarity needed to manifest itself, it is on the question of the refugee crisis. It is time to show collective courage and deliver this European response now.” [European Commission Press Release]
The proposal was welcomed by NGOs and immigration experts. After month-long discussions and disagreements the States agreed on sharing refugees among them. However, Czech Republic, Hungary, Romania and Slovakia voted against this proposal and stressed their anger and dissatisfaction. Slovakian Prime Minister called the idea of quotas unprecedented in EU history and said he would refuse to comply.[The Guardian]
The Paris Attacks and Terrorism Fears
A series of coordinated terror attacks in Paris on November 13, 2015 have had an impact on the refugee crisis, as well. Causing the death of at least 128 people, it has been reported as the deadliest attack in Europe since the 2004 Madrid bombings. [BBC News] Reports that one of the Paris terrorists was allowed to enter Europe as a Syrian refugee in October gave rise to some resistance to accepting those from Syria and other Middle Eastern countries. [CNN: Paris] Consequently, Balkan countries began to refuse refuge to people of certain nationalities. Reportedly, in borders with Croatia, Serbia, and Macedonia refugees from countries other than Syria, Afghanistan and Iraq were also stopped. Slovenia reportedly returned 168 Moroccan migrants to Croatia. [The Guardian]
After the Paris attack, French President Francois Hollande said France would honor a commitment to accept refugees despite the security situation. Emphasizing that the refugees would undergo very serious security checks he said that 30,000 refugees would be welcomed over the next two years. “We have to reinforce our borders while remaining true to our values,” he said. [Washington Post] However, France has informed the Council of Europe that it is invoking Article 15 of the European Convention on Human Rights, which allows for limits to be placed on some – but not all – human rights protections in situations of public emergency that threaten the life of a nation. [COE] The European Court of Human Rights must approve any particular suspension or derogation of rights, in accordance with the criteria laid out in Article 15. Human Rights Watch urged the French government to apply emergency provisions as narrowly as possible and to avoid discriminatory conduct in its efforts to counter terrorism. [HRW]
U.S. Response to the Refugee Crisis
The United States has ratified the 1967 Protocol and has incorporated its definition of refugees into its domestic law. See 8 U.S.C. § 1101(a)(42). Moreover, the United States has ratified the ICCPR, among other United Nations human rights treaties, and is held to the standards laid out in the American Declaration of the Rights and Duties of Man, which similarly prohibits discrimination in the enjoyment of human rights and guarantees the rights to freedom of movement and to choose one’s place of residence.
However, in response to the recent attacks on Paris, over half of the governors of U.S. states publicly announced that they would not accept Syrian refugees. [CNN: U.S. Refugee System; PBS] However, individual states are not authorized to make this decision; under the Refugee Act of 1980, the federal government has the “ultimate authority to handle refugees protected within [U.S.] borders.” [ACLU Blog] Once the federal government admits an individual to the U.S., that person is free to live in any state, regardless of that state’s approval, providing he or she complies with federal immigration requirements. See Truax v. Raich, 239 U.S. 33 (1915).
To determine the number of refugees the U.S. admits each year, the president consults with Congress. At the beginning of each fiscal year, the president sets the number of refugees to be accepted from Africa, East Asia, Europe and Central Asia, Latin American and the Caribbean, and the Near East and South Asia. A quota is also set for an “unallocated reserve,” which may be added to regional ceilings. These allocations may also be adjusted in the event of an unforeseen emergency. See Migration Policy Institute, Refugees and Asylees in the United States (2015). In response to the ongoing war in Syria, the Obama administration proposed increasing the number of refugees the U.S. accepts each year to 70,000 in 2015, 85,000 in 2016, and 100,000 in 2017. See Migration Policy Institute, Refugees and Asylees in the United States (2015). Additionally, the Obama administration proposed admitting an additional 10,000 refugees this fiscal year. [CNN: U.S. to Take At Least 10,000 More Syrian Refugees]
In response to concerns that terrorists may exploit the U.S. refugee resettlement program for their own agenda, the U.S. House of Representatives voted on November 19, 2015 to intensify U.S. screening procedures for refugees from Syria and Iraq by requiring the director of the FBI, the director of national intelligence, and the secretary for the Department of Homeland Security to personally verify that each refugee does not pose a risk to national security. [NY Times: House Approves Tougher Refugee Screening; Reuters: House Passes] If the U.S. Senate also passes H.R. 4038 (American SAFE Act of 2015), President Obama has stated he will veto it. See Executive Office of the President, Statement of Administration Policy.
According to the White House, none of the 2,174 Syrian refugees admitted to the U.S. since September 11, 2001 have been arrested or deported on terrorism-related grounds. See Executive Office of the President, Statement of Administration Policy. The Obama administration went on to note that the measures proposed in H.R. 4038 are “untenable” and would “only create significant delays and obstacles in the fulfillment of a vital program [Refugee Resettlement Program] that satisfies both humanitarian and national security objectives.” See Executive Office of the President, Statement of Administration Policy.
In the current situation, refugees are largely reaching the United States through official resettlement, rather than traveling directly to the U.S. from Syria or other places of conflict. This resettlement process is open to “only the most vulnerable members of an already vulnerable population – refugees with serious health concerns, those who have been tortured or imprisoned, women heads of household, to cite a few examples” and is described as “orderly, deliberate and highly security-sensitive” by outgoing UNHCR Commissioner António Guterres. [USA Today] Under existing screening procedures to determine whether an individual meets the statutory definition of a refugee and does not present a security risk, it takes 18 to 24 months for a Syrian refugee to be admitted into the U.S. The rigorous vetting procedures include: an initial interview with the Office of the United Nations High Commissioner for Refugees (UNHCR); a UNHCR referral for resettlement; biometric (fingerprint) and biographic checks, medical screenings, and an extensive in-person interview with a Homeland Security officer. Syrian applicants undergo an additional review by a United States Citizenship and Immigration Services refugee specialist; cases with “national security indicators” are forwarded to the Department of Homeland Security’s fraud detection unit. [NY Times: Why it Takes Two Years]
In order to comply with their obligations under the 1967 Protocol, international human rights treaties, and customary international law, the United States and European countries must not reject refugees that reach their territory without an individual determination of their eligibility and must not deny refugees their fundamental freedoms or discriminate against them on the basis of their national origin.
For more information about asylum and the rights of refugees, including a previous post on the migration crisis; the European Court of Human Rights; and the European human rights system visit IJRC’s Online Resource Hub.