This essay explores the question of whether the existence of legal protection for refugees provided for by International law such as the 1951 Refugee Convention is necessarily guaranteed by domestic laws and policies of Sovereign political States.
The fact that refugees are a people in transition , fleeing brutalities at the hands of their own nations, in search of a safe sanctuary and fulfillment of aspirations for themselves and their families, aspirations no different from ours, suggests that they should be treated no differently from other human beings . But, as Emma Haddad succinctly points out:
“Rights are only enforceable within political communities where they have been collectively recognized via a political process, and any such political process requires a political arena: The Globe is not, or not yet, such an arena.” (Haddad 2003, p.5) .
The divide between perceiving humans as sentient moral beings and humans as members of an exclusive political community- the nation State- remains a stark reality. Haddad argues that ‘without membership in a political community our so called human rights are worthless.” (Haddad 2003, p.6).
Refugees, regardless of whether they are fleeing gang violence in El Salvador or brutality in Syria are increasingly perceived by populist leaders such as Trump and Peter Dutton as threats, undermining the security and safety of their citizens. The assumption underlying political rhetoric that refugees of a particular racial, religious and national background pose existential threats to a society’s safety is unquestioningly racist, discriminatory and irrational;
Irrational, since these political narratives attempt to convince us that such superficial differences among humans in some way contribute to a person’s propensity to commit crime or acts of terrorism. State leaders, deploying exclusionary immigration polices exercise the prerogative of determining who is more deserving of legal and political protection, who is more human than others...
“In other words, the question of whether I have the right to be recognized as a human being and be afforded the dignity deserving of my humanity has little to do with individual morality, but everything to do with the political morality exemplified by the State.”
The fact is that unless and until such rights of refugees enshrined in international law are transposed into and recognized within the existing positive laws of a nation state as being legally enforceable by its judiciary, they remain illusory, reliant on the political goodwill of a State.
The US Supreme Court’s recent ruling legalizes Trump’s policy of denying asylum ‘to anyone who passes through another country on their way to the US without seeking protection there first (Guardian 2019) . Such immigration policies of Trump’s administration would inevitably affect thousands of people waiting ‘on lists at border crossings in Mexico to claim asylum in the US.’ Further, more than 30,000 people have been turned back to Mexico to wait out their asylum claims. ‘ ( The Guardian 2019)
This move by the highest court of the land effectively strips migrant families and their children fleeing lethal violence in South American countries such as El Salvador of the right to seek political aslyum in the US; a right guaranteed by international human rights law such as Article 14(1) of the Universal Declaration of Human Rights which states:
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (UDHR 1948)
Although Scholars argue that such rights enshrined in the UDHR lack the force of international law, there is an increasing acceptance that its provisions reflect international customary law. (Hannum p.148)
‘ With time, the Universal Declaration has itself acquired significant legal status. Some see it as having given content to the Charter pledges, partaking therefore of the binding character of the Charter as an international treaty. Others see both the Charter and the Declaration as contributing to the development of a customary law of human rights binding on all states.'( Henkin quoted in Hannum p. 147)
Article 31 of The Convention relating to the Status of Refugees 1951 further provides that:
‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’
Goodwin-Gill argues that ‘One implication of this provision is that, like the landing of those shipwrecked at sea or otherwise victims of force majeure, the entry of refugees in flight from persecution ought not to be construed as an unlawful act’ ( Goodwin-Gill 2001, p.37)
Yet the reality today is that thousands of refugees fleeing persecutions and violence from their nation States that have failed to provide state security remain imprisoned in neighboring States and are subject to physical and sexual violence.
For instance, the Women’s Refugee Commission reports that refugees arriving at Libyan detention centers are “often immediately raped by guards who conduct violent anal cavity searches, which serves the dual purpose of retrieving money, as well as humiliation and subjugation.” (The Guardian 2019)
The rift between cosmopolitan forms of human protection enshrined in International human rights law such as the 1951 Refugee Convention and communitarian policies of sovereign States advocating the maintenance of State and International security within the framework of International Society is increasingly evident.
As Goodwin – Gill argues ‘the 1951 Convention explicitly acknowledges that States retain the power to limit the freedom of movement of refugees, for example, in exceptional circumstances, in the interests of national security, or if necessary after illegal entry.’ ( Goodwin-Gill 2001, p.37)
Understanding Refugees and the Crises they face
Amnesty International defines refugees as people who fled their own country because they are at risk of serious human rights violations and persecution there. The ravages of war and violent tribal and sectarian conflicts in countries such as Syria, Afghanistan and Sudan are believed to have contributed to 25.4 million refugees globally fleeing for their lives, with many in need of immediate resettlement, food and medical care.
The genocidal massacre of thousands of Rohingya people by the Myanmar’s Army in 2017 led to a massive flight of terrified men, women and children into Bangladesh as a safe haven. But the number of refugees have swelled to 932,200 ( Amnesty International 2019) with migrants facing massive overcrowding and shortages of food and medical supplies.
The immediate question that comes to mind is whether domestic and international law guarantee a safe sanctuary to these millions of stateless migrants fleeing violence and the threat of death by obligating host nations to ensure their security and basic needs.
Exclusivity in State immigration policies: The criminalization of migrant refugees
One may be forgiven for thinking that developed countries would reflexively respond in a morally intuitive way to the dire needs of the 1. 2 million refugees globally who ‘ are at particular risk of violence, have special medical needs, or for other reasons are particularly vulnerable.'( Amnesty International 2017).
The reality, however, is that 85% of refugees are hosted by developing countries while the more affluent nation states, from the United States to Italy and Australia constantly conceive of novel yet inhumane immigration policies that exclude rather than include victims in need of humanitarian relief by criminalizing them or subjecting them to long periods of indefinite detention.
Consider Matteo Salvini, Italy’s interior minister’s recent act of refusing to allow 177 migrants languishing onboard the coastguard ship Ubaldo Diciotti to come onshore. The passengers on board the Diciotti were not terrorists or thugs, but migrants from countries such as Eritrea, Syria and Egypt. ‘Save the Children’ spokeswoman, Giovanna Di Benedetto said:
“On board this ship that is behind me are minors, women, people who have been in the detention centers in Libya for a long time, a year, a year and a half, two years, and they have really, really gone through a a lot,” she said.
“They are at the extremity of their strength. To stop these people from disembarking in a safe port where they could finally receive assistance … they need is just not admissible.
We ask the government to find a solution which puts in the forefront protection for these people and respect for their rights.” ( CNN 2018)
Across the Atlantic, the Trump administration was ‘discussing deliberately targeting migrant families by late 2017’ way before images of migrant children in cages shocked the world. The Office of Inspector General of the United States Department of Health and Human Services (HHS) revealed in January 2019 that ‘thousands more children were forcibly separated from their parents’ than the Trump administration had revealed. ( Human Rights Watch 2019).
In Gaza, about 70% of nearly 2 millions Palestinians are descendants of refugees, living under Egyptian rule from 1949 till 1967, when Israel took over the strip after the 6 Day War and occupied and besieged it for over 50 years. Amira Hass writing for Hareetz states that:
” The concentration camp that is Gaza has existed under ever harsher conditions (compared to the Bergen-Belson Nazi camp) for almost three decades. Contrary to Israeli propaganda, it was created before the suicide bombings, before Oslo, before Hamas took charge and developed its military skills.
Israel has a political goal in mind in turning Gaza into a giant concentration camp: Cutting it and its inhabitants off from the rest of the Palestinians so that it will become a separate entity, deprived of history, roots and belonging .” ( Amira Hass, Hareetz, Feb 3, 2019).
Emma Haddad (2003) Refugee protection: a clash of values, The International Journal of Human Rights, 7:3, 1-26
‘Refugees report brutal and routine sexual violence in Libya’ The Guardian, 25 March 2019.
L. Henkin, The Age of Rights (New York: Columbia University Press, 1990), p. 19.
Human Rights Watch
Guy S. Goodwin-Gill ,Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection
THE UDHR IN NATIONAL AND INTERNATIONAL LAW Hurst Hannum
Supreme court decision to let Trump deny asylum reverses years of US policy, The Guardian, 12 September 2019.