JURIST Guest Columnist Karla McKanders of the University of Tennessee, Knoxville College of Law discusses the European refugee crisis…

“They are people in genuine need of our protection. There is no wall you would not climb, no sea you would not cross if you are fleeing violence and terror. I believe we have a moral duty (to) offer them protection.”—Dimitris Avramopoulos, European Union’s Migration Commissioner.

Avramopolous’s statement raises contemporary issues of accountability of individual nation states to respond to the current global refugee crisis. His statements highlight the moral aspirations that were converted into legal obligations under the 1951 Refugee Convention; and the increasing burden that many countries in the Global South have recently encountered in attempting to process refugee flows at their borders.

Over the last few weeks Hungary, a 1982 a signatory to the 1951 Refugee Convention (“Convention”) and the 1967 Protocol (“Protocol”), took seemingly unprecedented steps to halt refugee flows at the country’s Southern border. Hungary’s geographic location has made it a transit, sending and destination country. The recent issues that have surfaced in Hungary highlight a refugee issue that has been building over the years in Hungary without much international attention. Hungary until 1997 accepted refugees only from European countries. After 1997, the majority of the asylum applications were non-European migrants from Afghanistan, Bangladesh and Iraq. Hungary’s past history of migration is important to understand the current refugee crisis and it also provides context to increasing demands on countries that have increasingly become destination countries for migrants.

The international community responded with outrage and incredulity to Hungary erecting legal and physical barriers to providing protection to vulnerable refugees. Hungary’s barriers diverted refugee flows to Croatia, an also 1992 signatory to the Convention, and prompted the UN High Commissioner for Refugees and nation states across the globe to delve into long overdue discussions regarding signatories’ obligations under the Convention.

The 1951 Refugee Convention defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social
group, or political opinion.” The principle underlying Convention is one of non-refoulement. Article 33 of the Convention defines non-refoulement as the promise to not return a refugee to a country where s/he may be persecuted. The 1967 Protocol modified the Refugee Convention broadening the definitional scope of who is a refugee and providing protection to “persons who have become refugees as a result of events occurring after 1 January 1951.” The Convention was created to set up an international mechanism to respond to the events of WWII to avoid failure to provide protection to migrants displaced by war, conflicts, government upheavals and genocide.

The Convention’s Preamble calls on signatories to act in good faith to ensure refugees within their borders are protected. Hungary’s recent response in affirmatively deterring and halting refugees and asylum seekers raises issues of the binding effect of the Convention on signatories and what mechanisms and strategies exist to hold signatories accountable. In addition EU members are also bound to abide by the provisions in the European Convention on Human Rights. Secretary General of the Council of Europe Thorbjørn Jagland stressed:

Any person arriving in the territory of the 47 member States of the Council of Europe is entitled to the same fundamental rights as everyone else,” Jagland said, stressing that even in times of large-scale arrivals, there can be no derogation from the European Convention on Human Rights, prohibiting inhuman and degrading treatment.

Hungary’s response highlights contemporary challenges that countries in the Global South face as new migration destination countries. Hungary’s response is indicative of a continuing global tug of war between the Global North and Global South. This tug of war involves disputes over which nation states are responsible and have the financial means to
manage large-scale refugee flows.

The exchanges between countries have occurred across the globe especially on borders where the Global North and South meet, leading refugee law scholars, like James Hathaway, to posit:

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.”

For example, Morocco, only 20 miles (31.72 kilometers) from the European Union (“EU”), across the Mediterranean and with Spanish Enclaves within its borders, has become a destination country. Morocco, as a new migrant destination country, is a result of more stringent EU border policies. The result is that countries in the Global South must address how to provide legal and humanitarian protection refugees and asylum seekers within its borders.

The same tensions exist on the US and Mexican border where since last year the US immigration system has been struggling to effectively address the 2014 humanitarian crisis. This crisis occurred when an unprecedented number of women and children asylum seekers fleeing violence in Central America were turned away from US borders.

This has led to a blame shifting game that contradicts the spirit of the Refugee Convention and calls into question its ability to effectively address refugee crises. “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 US and Canada, providing the lion’s share of this woefully inadequate contribution.”

To address these issues many nation states in the Global North have entered into first country of arrival agreements. The US and Canada have signed the Safe Third Country Agreement. This agreement provides “refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the agreement.” Similarly countries in the EU are parties to the Dublin Agreement that “establishes a hierarchy of criteria for identifying the Member State responsible for the examination of an asylum claim in Europe.” The Dublin Agreement provides a system wherein a asylum seeker may select where to travel predominantly on the basis of family links followed by responsibility assigned on the basis of the state through which the asylum seeker first entered, or the state responsible for their entry into the territory of the EU member states, Norway, Iceland, Liechtenstein and Switzerland. In the wake of the current refugee crisis, the EU is evaluating effectiveness of the agreement’s burden sharing mechanisms.

The goal of these agreements is to ensure that the country of first arrival takes responsibility for evaluating the asylum seekers claim to refugee status, to deter forum shopping and to ensure the country of first arrival provides access to its national asylum procedures.

Within this context individual nation states have the discretion to implement refugee-processing mechanisms in accordance with their nation’s domestic laws. Specifically article nine of the Convention provides “[n]othing in this Convention shall prevent a contracting state, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the contracting state that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.” This reflects the general principle that controlling migration is regarding as a key element that nation states regard as a threat to their sovereignty and security.

Hungary’s recent response, to the entry of approximately 175,000 migrants this year, was “to lay a razor-wire barrier along the Serb border and for almost 4,000 soldiers to begin erecting a fence 13 feet high with the help of prisoners from a nearby jail.” In addition Hungary has implemented laws to jail migrants, deploy its army and give law enforcement officials wide-ranging new powers to control migration flows. Hungary’s argues that it is their prerogative as a sovereign nation to decide and implement its own way of responding to the refugee crisis.

The questions surrounding Hungary’s response is whether its laws and polices towards refugees are tailored to manage refugee flows in furtherance of its national sovereignty, or simply pre-textual actions disguising discriminatory and xenophobic attitudes aimed at excluding Muslim asylum seekers from the Middle East and North Africa (“MENA”). Hungary’s Prime Minister Viktor Orban’s public statements highlight this concern. He unapologetically stated:

We shouldn’t forget that the people who are coming here grew up in a different religion and represent a completely different culture. Most are not Christian, but Muslim…. That is an important question, because Europe and European culture have a Christian root.

Article three of the Refugee Convention provides that signatories are to apply the Convention’s provisions “without discrimination as to race, religion or country of origin. Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality or other prohibited grounds of discrimination.”

The Hungarian prime minister’s statements and actions call into question the legality of Hungary’s building of fences, use of military and implementing new laws to halt the flow of refugees. Further statements by the prime minister also call into question the fairness and ability Hungary’s judicial bodies to impartially process refugee status determinations under their national system.

The treatment of refugees in Hungary is not a new issue. In 2014, UNHCR repeatedly criticized Hungary for its treatment of refugees claiming that they were housing refugees in former military barracks and had unclear policies that mandated the detention of migrants and refugees,. As lawyers, legal scholars and international actors, we need to use the current refugee crisis to assess and develop mechanisms to hold Convention signatories account able for its actions. Even though countries in the Global South are becoming new destination countries, they should not be permitted to hide behind the pretext of sovereignty to avoid their obligations under the Convention and implement discriminatory policies where they are able to pick and choose which refugee populations they deem acceptable.

Karla McKanders is an Associate Professor of Law at University of Tennessee, Knoxville College of Law. She specializes in immigration, asylum and refugee law. Professor McKanders received her JD from Duke University School of Law.

Suggested citation: Karla McKanders, 1967 Refugee Convention: Moral Aspiration or Legal Obligation? , JURIST – Academic Commentary, September 28, 2015, http://jurist.org/forum/2015/09/karla-mckanders-refugee-convention.php