by Susan M. Akram and Tom Syring
this blog entry was originally posted at the American Society of International Law’s International Refugee Law blog
What is the legal responsibility that European states bear towards refugees? The question does not lend to a simple, black-and-white, answer; and currently, some states are failing to uphold international norms that regulate humanitarian and migration policies.
On March 18, 2016, European Union (EU) Heads of State and Turkey entered into an agreement with a view to “end irregular migration from Turkey to the EU” and replace it with “legal channels of resettlement of refugees to the European Union.”
Under the terms of the deal, all new ‘irregular migrants’ – defined as persons either not having applied for asylum or asylum-seekers whose applications were deemed inadmissible – crossing from Turkey to the Greek islands would be returned to Turkey. In other words, for every returned Syrian (the largest group of ‘irregular migrants’), another Syrian would be resettled to the EU from Turkey directly. In addition, Turkey promised to “take any necessary measures to prevent new sea or land routes from Turkey to the EU.” In exchange, the EU would allocate €3 billion under the Facility for Refugees in Turkey, with an additional €3 billion to be mobilized by the end of 2018. Lastly, and perhaps the main motivating factor for Ankara to enter into this accord, the EU promised an accelerated process to lift visa requirements for Turkish citizens.
In parallel proceedings, the EU is also pushing ahead with a migrant pact on Africa, offering similar incentives – a share in the EU Emergency Trust Fund for Africa – to a number of African countries in exchange for stemming the flow of potential refugees to Europe. The deal, already deemed “morally unacceptable” by several human rights organizations, may also be questionable on legal grounds.
Both the EU-Turkey and EU-Africa agreements include the contribution of large sums of money to enhance the situation for refugees already in the respective regions by creating employment and development programs. Although this approach addresses some of the root causes of migration, the problem is that it relies heavily on partners that, at least in part, have a rather dubious track record when it comes to the protection of human rights. These regimes, due to their repressive nature, represent the very reason a number of bona fides refugees try to leave.
While the EU migrant pact on Africa is still in the planning, the EU-Turkey deal has formally been in force for three months. It has led to a reduction of new arrivals, but the agreement is fragile.
The redistribution of about 160,000 refugees currently in Italy or Greece to other EU Member States has barely begun. Due to inner-EU resistance, only about 2,200 of these refugees were resettled by the end of May 2016. Only about 500 had been ‘exchanged’ with Turkey and the lifting of EU visa restrictions for Turkish citizens seems to be a distant and uncertain reality. Meanwhile, inner-EU and post-Brexit sentiments, fueled by nationalism and funneled into populist votes, threaten to undermine even the least common denominator in the EU solidarity project.
Yet, none of that affects the legal obligations each and all EU Member States have towards refugees.
Some Background: International Law, Refugees, and the EU
European states are parties to the 1951 Refugee Convention and the 1967 Protocol. The core requirements of these international treaties are also obligatory across the EU, since the EU Charter incorporates the Convention’s provisions as binding on all EU Member States. This means that every person fleeing persecution or war and violence should have access to fair refugee and asylum determination procedures, the obligation of non-refoulement – states are required not to return someone to their home country if their lives would be threatened – and the prohibition against mass expulsion.
Additional obligations are also placed on Member States by EU law. For example, in emergency situations, where there is a mass influx of displaced persons, states must provide temporary protection against return regardless of international EU agreements (such as Dublin and Schengen). European states parties to the European Convention on Human Rights are also prohibited from sending refugees to other states, where the individuals would be at risk of return to persecution or violations of their Convention rights [See for example, M.S.S. v. Belgium & Greece (2011); NS & ME (2011)].
An important fact that gets lost in the migration and refugee debate is that none of these provisions require European states to grant refugees citizenship rights. The obligations are not to send refugees back to a place where their life or freedom would be threatened, to provide full and fair asylum proceedings, and to grant asylum to those individuals who meet the standards defined by international law.
Do the EU’s Migrant Deals Violate International Law?
As a point of departure, international law and EU law (the EU Asylum Procedures Directive) consider a country safe when there is a democratic system, no consistent persecution, no torture or inhumane or degrading punishment, and no armed conflict or general threat of violence. Apart from its own Member States, the EU Commission currently operates with a proposed list of eight safe countries of origin, mainly in the Western Balkans, and now Turkey, entailing still individual, but fast-tracked asylum procedures.
As far as return of non-nationals is concerned, such as Syrians to Turkey, or Congolese to Libya or Sudan, the ‘safe third country’ concept becomes relevant. Few of the countries that the two pacts would encompass have solid human rights safeguards with respect to their citizens, not to mention provide fair access to asylum procedures for non-citizens. Hence, here it would seem rather questionable that the safe-country criteria would be met.
Furthermore, Turkey is the only country that has maintained provisions in its ratification of the Refugee Convention by which it recognizes only European nationals as “refugees;” and thus gives no refugee recognition to the millions of people the country is currently hosting from Syria, Iraq, Afghanistan, Iran and elsewhere.
Ankara also recently adopted a new Law on Foreigners and International Protection (the LFIP), under which until recently, Syrians were not subject to refoulement and were given very generous temporary status and benefits. However, since last year there is evidence that Turkey has begun refouling refugees to Syria and Iraq, and with its application of the Refugee Convention that fails to recognize non-Europeans as refugees, it remains to be tested whether it can be considered a ‘safe third country,’ for Syrians and other refugee nationalities.
The European side of the agreement, as far as it affects putative refugees, violates all of the obligations that EU Member States owe to those seeking refuge under international law and treaties.
A Comprehensive Plan of Action Needed
An appropriate response to the worst refugee crisis since World War Two is for all of Europe to participate in the UN Refugee Agency-led (UNHCR) proposal for a Comprehensive Plan of Action (CPA), which sets out a specific number of refugees that each state should accept, the various kinds of statuses that participating states are willing to provide, minimum standards of benefits to be granted, and fair refugee status determination processes in all states. Similar CPAs have been negotiated in response to mass international refugee flows since the 1970s, and well-established guidelines and criteria exist as solid precedent to resolve the current dilemma plaguing Europe.
No one state is obliged to shoulder the entire refugee burden; it should be divided among the states. Currently, the front-line states of Turkey, Iraq, Jordan and Lebanon are bearing an overwhelming share of refugees from Syria, Iraq, Palestine, Afghanistan, and Pakistan – not Europe. Turkey by itself has over 2 million registered refugees.
The wealthy countries outside the region have pledged no more than 130,000 resettlement slots. Less than 70,000 have applied for asylum in Europe, which amounts to less than 1.39 percent of the Syrian refugee flow.
Germany has adopted a more “open door” policy and took in close to 1 million refugees in 2015 (more than the total number of refugees the U.S. accepted in the last 10 years), but this response must be seen in the context of what the front-line host states are currently confronting. In Lebanon, for example, one in four persons is a refugee. Angela Merkel’s response is the correct legal one, but Germany should not have to take that position by itself. A carefully planned and implemented global CPA is the only way forward, and it is required by law.
Previous well-planned CPAs can act as legal precedents for the current crisis in Europe. These include the Indo-Chinese CPA of the 1970s, the CIREFCA following the Central American civil wars of the 1980s, and the Balkan CPA of the 1990s. Far from destabilizing resettlement in host and home states, each of these CPAs provided the responsibility-sharing and resource-sharing pacts necessary to push resolution of the conflicts forward as well as providing what was necessary to resolve the refugee crisis in each particular situation.
There is also no evidence that resettled refugees or individuals granted temporary protection in host or third states in these prior CPAs depressed the economies of those states. Current data gathered for Jordan, for example, shows that since the influx of Syrians, the state’s economy has actually grown due to a flood of refugee aid and entrepreneurship by a highly skilled and resilient refugee community. In fact, a well-planned CPA is more likely to augment the economies of European states, as the majority of the refugees are young, educated, and motivated. This new labor force will boost the tax and social security base of populations across Europe that are aging and retiring. It could be a win-win.
Susan M. Akram is Clinical Professor and Supervising Attorney at the International Human Rights Program at Boston University School of Law and Co-Chair of the American Society of International Law Interest Group on International Refugee Law. Tom Syring currently serves as Legal Adviser at the Norwegian Immigration Appeals Board and Co-Chair of the European Society of International Law Interest Group on Migration and Refugee Law.