What Law and Ethics Demand in Refugee Crisis


Authors: James Cavallaro and Mirte Postema

Publish Date: September 28, 2015

Publication Title: Daily Journal

Format: Op-Ed or Opinion Piece

Citation: James Cavallaro and Mirte Postema, What Law and Ethics Demand in Refugee Crisis, Daily Journal, September 28, 2015.

Full Opinion Piece

[via Stanford Human Rights Clinic] According to the United Nations High Commissioner for Refugees (UNHCR), more than 440,000 refugees have entered Europe by sea this year. Nearly 3,000 of those have died or gone missing while trying to cross the Mediterranean. It is expected that these numbers will rise considerably in the coming months, and that close to one million refugees will try to enter Europe.

The current crisis seems to have taken the world by surprise, despite clear indications that it has been pending—if not full-blown—for years. Flight caused by wars, conflict, generalized violence, persecution, and human rights violations prompted an increase in the number of forcibly displaced to 59.5 million people, up from 51.2 million in 2013. Exacerbating this has been the intensification of the crises in Syria and Iraq. The civil war in Syria has been raging several years now, and the latest conflict in Iraq began with the U.S. invasion in 2003, ebbing at times, but never ceasing entirely. While most of those affected by the resulting violence have sought refuge in neighboring countries, increasing numbers of people are now fleeing through Turkey and into the European Union.

The largest numbers of refugees are arriving in Italy and Greece, both sizeable countries with long Mediterranean borders, that serve as entry points for travel to states with more robust economic conditions and flexible asylum policies, such as Germany. Many of those fleeing to Europe travel through Hungary, a Schengen country, from which there should be free movement to the other 25 Member States. However, Hungary has deployed its armed forces to control the borders, authorizing the use of rubber bullets, tear gas, and net guns. And Germany, despite announcing it would provide refugee to at least 800,000 people, has temporarily suspended its Schengen membership to re-introduce border checks. In the meantime, other Western countries such as the United States, Canada, and Australia, have provided a muted response at best, announcing plans to accept some 10,000 to 30,000 refugees each.

Are these responses in accordance with these countries’ international obligations? To answer that question, we turn to the relevant international legal standards. While international law creates clear state duties with respect to refugees and those fleeing situations of danger, it requires less with regard to those affected by economic hardship or crisis. Those in this condition may be termed migrants, although the term is often used as a catch-all to refer to any person who travels from one area to another, usually across borders. According to the 1951 United Nations Refugee Convention—to which the United States acceded in 1968 by ratifying its 1967 Protocol—a refugee is a person who is outside of his or her country of origin and is unable to return because of “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. The protections afforded to refugees under international law are, understandably, stronger than those provided to migrants (established, among other sources, by the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Their Families).

In the current context of crisis, the most relevant duty that states owe those fleeing danger is that of non-refoulement, or non-return. Refugees (as defined by the Refugee Convention), but also others who might not fit that definition, benefit from the prohibition on refoulement. This means that they may not be returned to countries or areas in which their lives or freedom could be in danger. Today, some 84% of those reaching Europe come from the ten countries that produce the most refugees: Syria, Afghanistan, Somalia, Sudan, South Sudan, the Democratic Republic of the Congo, Myanmar, Central African Republic, Iraq, and Eritrea. In these countries, large areas are affected by war and severe civil strife. All this suggests—at least—that the protection against refoulement applies to a great percentage of those fleeing to Europe. Deportation without review of one’s particular circumstances to assess the threat faced on return is inconsistent with international law.

In addition to protection from refoulement, the Refugee Convention requires that States provide refugees “the most favorable treatment awarded to nationals of a foreign country in the same circumstances.” This means that refugees should be allowed to engage in remunerated labor and be given access to housing, education, and public assistance (‘welfare’). They should also be given equal access to the courts and cannot be subject to duties, taxes or levies that do not apply to nationals in similar situations.

These principles constitute minimums required by international law. At the very least, refugees should be provided shelter—especially relevant now that winter is approaching—and be afforded the possibility to work and educate themselves. Beyond that, it could also be argued that western nations have both a legal and moral responsibility to provide for those who are fleeing countries that their actions (and omissions) have destabilized, such as Syria, Iraq and Afghanistan. According to that reasoning, apart from receiving more refugees from those countries, western nations could, for example, be more active in creating the conditions for people to prosper in their home States by pushing for a cessation to hostilities.

At the moment, we are observing wholesale failure to comply with the minimum requirements imposed by international law and ethical decency: mass arrests, prosecutions of asylum seekers, border closings and a steady stream of preventable deaths are the most obvious signs of this failure. But these are symptoms of a larger, structural problem, or, better stated, a larger confluence of structural problems. For States in Europe to meet their obligations, they must respond to the current crisis with a coordinated humanitarian response. The elements of this response may be beginning to take shape—a European Union agreement to distribute the burden of refugees among European States is a start. Increasing levels of refugee resettlement by states in other parts of the world will also help.

As things stand, though, the collective response across Europe and beyond has largely failed to respect existing legal norms. It has been even more distant from standards of human decency and compassion. While Europe, and other states must follow the law on this issue, we would all be well-served instead the guidelines were driven by ethical standards. In reflecting on the immigration and refugee crises on both sides of the Atlantic, the Pope, in a historic speech to a joint session of Congress on Thursday, urged authorities to respond “in a way which is humane, just and fraternal.” If we can follow that standard here and in Europe, legal compliance will no doubt follow.

A slightly modified version of this article was featured in the Daily Journal on September 28, 2015.