Following the passage of controversial proposals on the EURODAC database of asylum applicants' and refugees' fingerprints,Greens/EFA MEPs protest the erosion of asylum seekers' basic rights, 2013. wikicommons/Greensafe. Some rights reserved.The
practice of making and granting claims of asylum based on persecution is one of
the most concrete expressions of human rights. Yet after more than sixty years,
the refugee regime is facing an existential threat. While Donald Trump’s latest
executive order[1]
has delivered the greatest blow, European states have weakened the regime by
refusing to receive and resettle refugees and through their use of discriminatory
policies of selection. Regrettably even liberal minded voices are undermining the
human rights architecture upon which the refugee regime is based.
The
1951 Refugee Convention does not define persecution. It is a curious but historical fact that
neither Article 1, which introduces the definition of a refugee, nor the term
‘persecution’ feature much in the initial analysis of the Travaux
Préparatoires which detail the discussions that gave way to the Refugee
Convention.[2] Rather, Paul Weis’s celebrated analysis
begins with Article 2 on the general obligations of refugees. In spite of this
omission, legal scholars have held that persecution connotes ‘injurious’ or ‘oppressive
action’ which is informed by human rights standards in the country from which
the asylum seeker has fled.
It
is specifically this linkage to human rights which underpins the way claims are
evaluated and which is crucial for the preservation of asylum. That is why the
decision by Greece’s Supreme Court this week regarding the claims of eight
Turkish officers accused of involvement in the failed Turkish coup is so very
important.[3] Rather than bow to political pressure, for
fear of upsetting a neighbouring NATO member state, the Court ruled that the
defendants faced human rights violations if the request for extradition to
Turkey was upheld. The Court’s decision unequivocally affirmed the right to
seek and receive political asylum. That is why the decision by Greece’s Supreme Court this week
regarding the claims of eight Turkish officers accused of involvement in the
failed Turkish coup is so very important.
By
contrast, Trump’s draft executive order blatantly illustrates how geopolitical
concerns may interfere with the protection of refugee rights. The draft,
entitled, “Protecting the Nation From Terrorist Attacks by Foreign Nationals’,
introduces a temporary ban on particular nationalities who are excluded from the
US resettlement programme. This applies to refugees from Syria, Iraq, Iran, Libya,
Somalia, Sudan and Yemen. The draft order caps refugee admissions at just
50,000 and also bars nationals from those states, even those holding visas,
from entering the USA. It is not just that refugees from Syria, Iraq and
Somalia make up more than half the world’s refugee population, the order is
fundamentally discriminatory even against those fleeing IS, Al-Shabab, and
other oppressive regimes.
Refugee
support organisations based in the USA have already noted that in the absence
of the US resettlement scheme, more refugees from those states will be pressed
to take their chances crossing the Mediterranean to reach Europe.[4] Yet,
here too, European states have also cherry picked among those they wish to
consider for refugee status. This is most clearly evidenced in Greece, a
country which is now holding tens of thousands of people who have been denied
the right to relocation offered only to nationals who have an average EU-wide
asylum recognition rate equal to or higher than 75 per cent.[5]
The scheme covers Syrians, Iraqis and Eritreans but leaves out Afghans,
Iranians, and Pakistanis. What is more, the scheme only covers those in Greece
before 20 March 2016 when the EU-Turkey deal came into effect.
While
Greece will be left to process claims for tens of thousands of non-privileged asylum-seekers,
the emerging consensus is that by restricting the flow of refugees to developed
states by offering incentives to lesser developed states to house them,
refugees will be able to find protection elsewhere – increasingly in oppressive
states like Turkey and Ethiopia. The fact that large groups of refugees are
geographically contained has given rise to further security and development
initiatives, most notably the expansion of mobility partnerships and common
agendas. Although these arrangements differ from one state to another, and
while full mobility partnerships offer some visa facilitation to generally
highly skilled nationals on the premise of signed readmission agreements, they
have no basis in EU law. The overarching focus is cooperation on matters of
security and irregular migration in return for aid. In effect, these programmes
deny refugees the right to freedom of movement and in so doing also close off
safe and legal routes to seek asylum.
The
EU-Turkey deal is perhaps the most egregious example of a mobility style partnership
where, in exchange for blocking the flow of refugees to Europe, Turkey has
received billions of euros in aid and Erdogan’s abuses have been tolerated. While
most refugees have been unaffected by the post-coup clampdown, more than 800
people have been returned from the EU to Turkey, some sent to inhospitable
detention centres, as reported by Human Rights Watch. Similarly, the
partnership with Ethiopia has been welcomed even though it may be perceived as
a fig leaf to a regime which has killed more than 500 peaceful protestors and
is not stemming the flow of irregular migrants to the southern Mediterranean.
With
large numbers of refugees contained in the Global South and Middle East, some
scholars and development experts have militated for a new paradigm based on the
creation of special economic zones. Most notably, Oxford University Professors
Paul Collier and Alexander Betts have proposed that through such zones, jobs
can be brought to refugees.[6] Yet, these can only function on the basis that
mobility rights are effectively curtailed.
The focus is pragmatic and overwhelmingly centres on livelihoods, not
access to civil and eventually to political rights which is effected through
the refugee route of asylum and integration.
Building
upon this logic, Betts argued that diasporas could also play their role in
helping to further transition in their countries of origin. In response, two Oxford
University students challenged their professor, claiming that it is ethically
wrong to see refugees as ‘political resources’ and that this formulation may
undermine individual agency.[7] It
is also naïve. As Paul Hockenos records in Homeland Calling[8], a
book which describes how diasporas from the former Yugoslavia behaved during
the Balkan conflicts of the 1990s, many diasporas house interfering chauvinists
and even when they vote for democrats and appear to have the trappings of
settled Americans, Canadians or Europeans, their views towards their countries
of birth or sentimental attachment may be considerably less enlightened. Two Oxford University students challenged their professor,
claiming that it is ethically wrong to see refugees as ‘political resources’.
It is also naïve.
Collier
has also condemned the Refugee Convention as anachronistic and too focused on
the protection of individual rights, rather than collective realities. Writing
in the Financial Times in September
2016, he
argued:
‘[Yet] today’s refugees are overwhelmingly fleeing
mass disorder rather than state persecution, and none of the countries that are
havens to most of the world’s refugees are signatories to the convention.
Meanwhile, a handful of specialist lawyers has tortured the meaning of words,
resulting in an indefensibly inconsistent patchwork of international
practices.’
This
is simply inaccurate. The reasons why many failed states have generated large
numbers of refugees are often the result of political inequality which may
manifest as societal discrimination and persecution by both state and non-state
actors. Syria, Iraq, Afghanistan, Somalia and now South Sudan are emblematic of
the contemporary refugee-producing state, where large numbers are expressly
fleeing as a result of well-founded fear of persecution. Moreover, we return to the fact that the
reasons why large numbers of refugees are concentrated in states which have not
ratified the Refugee Convention is not only the failure of past development
efforts but also a reflection of their lack of options and the absence of safe
and legal routes out of these regions.
Rather
than think of refugees as potential agents of terror, or as the condition for
receiving aid, as tools for economic development or political reform, why not
think of them as people in need of protection?
We
need to stop downgrading refugee protection and accept that for millions of
refugees persecution is the principal reason for flight today as it was before,
during and after the Holocaust. In so doing, we would be affirming the importance
of human rights and the rationale behind the refugee regime which remains more
relevant than ever.
[1] See
Huffington Post, Read
Draft Text Of Trump’s Executive Order Limiting Muslim Entry To The U.S.
(EXCLUSIVE), 25 January 2017.
[2] UN High
Commissioner for Refugees (UNHCR), The Refugee Convention,
1951: The Travaux préparatoires analysed with a Commentary by Dr. Paul Weis,
1990
[3] Niki Kitsantonis, ‘Greece’s Top Court Rejects
Extradition of Turkish Officers’, The New
York Times, 26 January 2017
[4] Kristy
Siegfried, Trump
actions set to derail global refugee resettlement efforts, IRIN, 26 January
2017
[5] European
Agenda on Migration – Legislative
documents
[6] Alexander
Betts & Paul Collier, ‘How to Help Syrians – Let Displaced Syrians Join the
Labor Market’, Foreign Affairs, Nov/Dec 2015.
[7] Rebecca Buxton
and Theophilus Kwek, ‘Refugees
are not Political Resources: A Reply to Alexander Betts’, IRIN, 26 January
2016
[8] Paul Hockenos
(2003), Homeland Calling: Exile Patriotism and the Balkan Wars, Cornell
University Press.