The Shadow of Syria: Why To Protect Refugees?
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Transcript of The Shadow of Syria: Why To Protect Refugees?
The Shadow of Syria: Why To Protect Refugees?
Boldizsár NagyLegal Research Network Summer School 2012
17 September 2012Budapest, ELTE, Dean’s Council Room
Syria a torturing regime
Source: HRW: Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground Prisons since March 2011, July 2012 available at http://www.hrw.org/sites/default/files/reports/syria0712webwcover_0.pdf visited 13 September 2012
„More than 250,000 Syrians have to date registered or applied to register as refugees in Turkey, Lebanon and Jordan, but the real number of those who
have fled the fighting could be much higher.” UNHCR 13 September 2012http://www.unhcr.org/5051ef1c9.html
http://unhcr.org/v-50129c266Za'atri refugee camp in Mafraq, Jordan
• A boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted.
• All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days. "Every morning we would wake up and find more bodies, which we would leave for 24 hours and then throw overboard," said Abu Kurke, one of only nine survivors. "By the final days, we didn't know ourselves … everyone was either praying, or dying."
Nothing new….Guardian, reporting on 8 May 2011
Source_ http://www.guardian.co.uk/world/2011/may/08/nato-ship-libyan-migrants, visited 9 May 2011
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The Berlin Wall 1961 – 1989 and the frontier around Europe
• During the Wall's existence there were around 5,000 successful escapes into West Berlin. Varying reports claim that either 192 or 239 people were killed trying to cross and many more injured. http://en.wikipedia.org/wiki/Berlin_Wall visited 25 February 2006
Source: http://www.unitedagainstracism.org/pdfs/listofdeaths.pdf visited 13 September 2012Presentation by Boldizsár Nagy
Recent statistics about asylum applications in the EU
If persons could freely cross international borders, there would
be no need to exempt refugees from entry conditions
So, why to make that exception from the general exclusion, why to protect those
who flee oppression, persecution, torture, inhuman treatment?
Two alternative argumentative routes to overcome borders as barriers
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A right to enter for everyone including asylum seekers and
refugees
An exceptional right - against the general ban to enter if entry conditions not met
Migration without borders (or: open borders) scenario
The right to exclude foreigners curtailed by the right of the asylum seeker/refugee to enter even if general immigration criteria not met
The migration without borders (open borders) scenarioThinking about the unthinkable?
• Meaning: a right to enter and settle on the territory of a state irrespective of the nationality of the migrant and without the requirement to meet any specific condition (if no exclusion grounds apply)
• Not: – „abolition of the borders”– lack of border controls– loss of right to exclude certain individuals
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Universal regimeThe right to leave one’s country and to return is recognised (UDHR, Art 13 (2), ICCPR, Art 12 (2))ICCPR: „Everyone shall be free to leave any country, including his own”
Regional regimesEU
TFEU, Art. 20 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the
Union. Citizenship of the Union shall be additional to and not replace national citizenship.2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:(a) the right to move and reside freely within the territory of the Member States;
Charter of Fundamental Rights, Article 45
Freedom of movement and of residence1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States.2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally
resident in the territory of a Member State.
Other regimesUK-Ireland: common travel areaECOWAS Economic Community of West African States
For details with other regions see:http://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/microsites/IDM/workshops/free_movement_of_persons_18190607/idm2007_overviewchart.pdf
_____________________________________________________In all regions certain limitations apply• EU: removal only if based on grounds of public policy or public security and be based exclusively on the personal conduct of the
individual concerned. That conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. DIRECTIVE 2004/38/EC , on the right of citizens of the Union and their family members to move and reside freely within the EU territory, Art 27
The law as it stands
MWB / Open borders
• Joseph Carens, 1987:• "Borders have guards and guards have guns"
• "on what moral grounds can …people be kept out? What gives anyone the right to point a gun at them?”
• "Liberal theories focus attention on the need to justify the use of force by the state. Questions about the exclusion of aliens arise naturally from that context."
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MWB /Open borders
In favour• Fundamental human liberty • Intra-state analogy (free
movement in federal states)• Citizenship/domicile privileges
not justifiable • Duty to alleviate poverty• Cultural differences and bounded
communities may be preserved even in a free movement scenario
• Would (greatly) increase world economic output
Against• Priority for fellow
nationals/countrymen• Public order (chaos in large scale
influx)• Protection of democracy (from
its opponents)• Solidarity in social services –
different standards in different countries
• Preservation of ethno-national culture
• Preventing brain drain
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10POSSIBLE
ARGUMENTS SUPPORTING THE VIEW THAT REFUGEES ARE
(SHOULD BE) ENTITLED TO PROTECTION EVEN IN TIMES OF IMMIGRATION CONTROL
Brubaker and Cooper: Identity: overburdened – three clusters of meaningA) Identification and categorization (pp.14-16)
External categorisation (e.g. by the state) or self identificationRelational (e.g. kinship) categorical (e.g. profession)
B) Self-understanding and social location„It is a dispositional term…one's sense of who one is, of one's
social location, and of how (given the first two) one is prepared to act.” (p. 17)
C) Commonality, connectedness, groupness (part of self understanding)„’Commonality’ denotes the sharing of some common attribute,
"connectedness" the relational ties that link people. Neither commonality nor connectedness alone engenders "groupness" – the sense of belonging to a distinctive, bounded group involving both a felt solidarity or oneness with fellow group members and a felt difference from or even antipathy to specified outsiders.” (p. 20.)
Identity
Construction of the self (Identity)
Shared identity (imagined community)
1. global: altruism – member of human race (liberal egalitarian arguments)
2. ethnically/culturally/religiously determined „one of us” (communitarian, ethno-nationalist)
3. „The bank of history” - repaying historic debt accumulated by own community (remembering predecessor refugees who found asylum – communitarian)
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Construction of the self (identity)
Difference-based
4. indigenous – foreigner (hospitality)
5. rich – poor (altruism, solidarity, moral command)
6. democratic, law respecting – persecutory, totalitarian
(political choice)
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Reciprocity (utilitarian)
7. Today’s refugee may become tomorrow’s asylum provider and vice versa . – This is a utilitarian, rational choice approach.
– Europe, last 70 years:• Spanish, French, Germans, Baltic people, Italians,
Polish, Greek, Hungarians, Czechs and Slovaks, Romanians, Russians, Moldavians, Armenians, Azerbaijans, Georgians, Croats, Bosnians, Serbs, Albanians, (and other nationalities) had to flee
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Political calculation (utilitarian, political choice)
8. Granting protection in order to achieve a political goal
- conflict prevention / domestic political pressure- window dressing in order to gain accession to a desirable political community (Council of Europe, EU, etc.)
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Historic responsibility
9. If persons were persecuted by a given state or because of the acts of a given state, then the state who is responsible for the persecution ought to offer protection(Germany before and after WWII; US, Australia - South Vietnamese)
Three possible meanings
- (Recognised) refugee
- Within the country
- Asylum seeker + refugee
- At the border or within the territory
- Anyone
- Anywhere
Against persecution
On five grounds
Against torture, inhuman or degrading treatment or
punishment
On any ground
Non-refoulelment – as a customary law principle applicable without explicit or implicit consent
Exclusion of refugees
In order to argue in favour of limiting the arrivals/excluding refugees the actor must:
– be consequently egoist (welfare chauvinist)– have no historic memory– blindly trust stability– be a realist (willing to violate law if it is in the
perceived national interest and no sanctions threaten or interests outweigh harm caused by sanctions)
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Logical, but
Is there a room to ignore the above arguments with the
„yes, they are logical, but….” formula?
•NO!
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THE FATE OF THE EUROPEAN TRADITION
IN ASYLUM LAW
CIVILIZE? BRUTALIZE?
Harmonization – key concepts and the impact of the acquis
Civilize?
• Extended protection categories (subsidiary, temporary)
• Gender and culture sensitive procedural minimum standards
• Substantive requirements and standards on the reception of asylum seekers
• Considerable support by through the European Refugee Fund and EASO (from 2011)
• Solidarity with groups having special needs – especially in European context
• Orderly resettlement schemes starting
• Relocation within Europe –genuine solidarity?
Brutalize?
• A generally restrictive, exclusionist approach, based on the presumption of non-genuine claims
• Restrictive interpretation of the definitions pushing to categories with less rights
• Heavily criticized „minimum standards” of procedure
• Non-access, non-entry techniques (visas, carrier sanctions, interception, border surveillance, detention)
• Efforts to shift responsibility for status determination and care (safe third country rules, readmisson agreements, plans for processing in the region of origin)
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EU membership – the impact of the institutions
Civilize?
• Commission, Council, Parliament: exposure to the international, forging professional allies, ammunition to fight domestic retrogrades
• Court of Justice of the European Union control
• Increased technical cooperation – improved access to COI info, trend-analysis, etc
• Brutalize?
• Intolerable inhuman treatment of asylum seekers, unmanagable burden on states at the external border of the EU (The Dublin regime and the lessons from M.S.S v. Belgium and Greece)
• Routine, remote from field, peer pressure for restrictions, inadequate preparation
• Guaranteed free hand in matters of national security
• The vision of the security continuum – threats to data protection and privacy
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The Member States• French-Italian row over
Tunisians given temporary residence permit by Italy
• calls to revise the Schengen system in order to restore border controls
• Hermes operation brought forward from June „with a view to detecting and preventing illegitimate border crossings to the Pelagic Islands, Sicily and the Italian mainland”
EU and UNHCR• Cecilia Malmström, the EU's
commissioner for home affairs, „The current crisis has confirmed the need for increased solidarity at EU level and a better sharing of the responsibilities”
• „..we must also show continued support towards North Africa, to the people there in need of international protection.”
• Pilot project for relocation from Malta extended
• UNHCR did not call upon the EU MS to apply the temporary protection directive but expects
– resettlement from the region and – respect for the obligations to
rescue at see and access to protection
Reaction to the 2011 crisis in the Mediterraneum
„Europe needs to strengthen the existing rules, and not to undermine them. We need to address this challenging and evolving situation through long-term measures based on the values of the respect for law and the respect of international conventions and, not through a short-term approach limited to border control. We need leadership that can stand up against populist and simplistic solutions. We need clarity, responsibility and solidarity. We need more Europe, not less.”
Indeed!
Malmström’s message 2011
Thanks!Boldizsár Nagy
Eötvös Loránd university and
Central European University Budapest
www.nagyboldizsar.hu