Putting to one side the question of just how many people arriving in Europe would constitute a crisis given the resources that are available in this region, especially after having regard to the numbers that cross into and remain in states in Africa and south-east Asia, this article is focusing on ‘Europe’, ‘refugees’ and the search for solutions.
By Geoff Gilbert, Professor of Law, School of Law & Human Rights Centre, University of Essex.
To start with, the alleged crisis is one that is more about the European Union member states than about Europe as a whole: the twenty-eight member states of the EU are arguing about whether an out-dated allocation procedure for deciding where refugees making it to a member state should have their status determined and then where they shall receive protection. In 1987, when the Soviet Union and Eastern Bloc were still in existence, when West Germany and Austria constituted part of the eastern border of the EU, it was not a major cause of concern to establish that the state where the asylum seeker entered the EU should be the one to make the determination on refugee status. Today, with greater, but still manageable, numbers for the EU as a whole entering from across the Mediterranean from all parts of Africa and with the war in Syria displacing so many into Turkey, Lebanon and Jordan, some of whom then head for Greece or Bulgaria as the point of entry into the EU, that process cannot be sustained. As Germany has recognised, the so-called Dublin system for allocating refugee determination processes as between member states needs to be reconsidered. However, that is an EU problem and one that goes beyond international refugee law as well.
The 1951 Convention Relating to the Status of Refugees does not require persons fleeing to seek refugee status in the first safe country, whatever that might mean, to which they come. Everyone who makes it to the territory of a state party to the 1951 Convention should be able to seek protection there – what had been happening in the 1980s was that individuals would arrive in one EU state and, if their application failed there, they would move to another and start the refugee determination process afresh – the Dublin procedures allowed EU member states to return an applicant for refugee status to the point-of-entry state for their determination which would effectively become an EU-wide decision. It is still the case today, where the issue is more to do with northern EU states trying to ensure that the refugees remain in the southern and eastern member states, despite the fact that since the financial crisis of 2008, these are the generally poorer parts of the EU with fewest resources to devote to handling the numbers who arrive. It is to Germany’s very great credit that it has waived the Dublin procedures as regards Syrian refugees as it prepares for the arrival of 800,000 applicants for status, approximately 40 per cent of all EU applications.
That, though, is only part of the story. Alongside the EU’s Dublin procedures, there is the Council of Europe’s European Convention on Human Rights (ECHR): in this particular context, that means that even though the Dublin procedures allow for return to the point of entry state, that cannot occur if that would mean subjecting the applicant to inhuman or degrading treatment – some of the conditions in detention facilities are so poor that they would amount to a violation of this aspect of Article 3 of the ECHR. In addition, having regard to the broader picture of the population flows from the wars, situations of civil disturbance and gross human rights violations that are taking place in the various countries of origin, and knowing that there are so many vulnerable people trying to reach Europe across the Mediterranean, it is arguable that the positive obligations arising from the ECHR’s right to life and the right to be free from torture, inhuman or degrading treatment require member states to take active steps to search for those who might be in distress on the seas. The picture of the young boy drowned on the front of The Independent newspaper should not have come as a surprise to anyone – the statistics of those dying in hundreds over this summer as they strive for protection not available in their country of nationality or in the countries en routemean that he will not be alone and will not be the last unless the EU’s maritime operation assumes its responsibilities to search for and rescue those making this hazardous crossing. Persons have the right to seek asylum from persecution and it is the height of futility to somehow hope that the rest of Europe will resolve the crisis by asserting that taking more refugees is not a solution – states parties to the 1951 Convention have assumed a responsibility to protect from refoulement all those with a well-founded fear of persecution and, having entered into an EU-wide procedure, that will effectively demand full participation in new EU processes to respond to new crises.
Ultimately, though, long-term resolution will require recognition that people will continue to come until either the crisis in their country of nationality is resolved in a manner that involves all the relevant actors or through local integration or resettlement through some comprehensive plan of action across not just the entire EU, but globally. It is a mark of the self-obsession of the EU member states that the focus has been entirely on the refugees who make it to their borders, failing to recognise the many more refugees in neighbouring states to the conflicts. The causes of conflict are manifold, but unfair distribution of resources often plays a part and it is also a push factor towards the global north. The mass movements of people cannot be resolved by the EU alone, there is a need for a global conference, organised by the UN, drawing on the expertise of not just UNHCR, but also the other UN actors more focused on development within states and between states. The UN has adopted as core to its operations the rule of law, a principle designed to build state capacity so as to meet states’ international obligations, promote the rights of all individuals within states, including the displaced and the stateless, and to enhance co-operation as between all states so that burdens are fairly shared and as between the various UN bodies so that it may act as one. Now more than ever a global response is needed, not just one reflecting the overreaction of twenty-eight states that are still among the wealthiest states on the planet. Those fleeing armed conflict and other human rights violations will not simply stop coming just because politicians try to outdo themselves in empty rhetoric while failing to fulfil international obligations they try and impose on other less well-off states.
Parts of the argument here follow on from a consultancy with UNHCR in 2014 that was undertaken with Mag. Anna Magdalena Rüsch (LLM IHRHL 2011-12)
Disclaimer: The views expressed herein are the author(s) alone.