Tag Archive | "refugees"

The EU-Turkey Statement – Questions on Legality and Efficiency

Introduction

PowerPoint Presentation

The European Union (“EU”) has been facing challenges in recent years related to the large number of people who want to come to Europe. Although the ongoing conflicts in Syria, Iraq, Afghanistan, Somalia, and Eritrea were not new, the influx of people migrating to Europe had peaked in 2015. An overwhelming flow of smuggled migrants and asylum seekers traveled on fragile boats across the Aegean Turkey to the Greek islands[1] aiming for Western Europe. In 2015 alone, more than one million people arrived in the EU, around 885,000 of them through Greece whose asylum and reception system lacked the capacity to register and provide shelter to the migrants.[2] The majority of migrants moved on towards central Europe without proper registration. As a consequence of this migration flow, some Member States tried to limit the number of migrants entering their territory by introducing temporary internal border controls, putting into question the proper functioning of free movement within the Schengen area.[3] While entry conditions were re-applied even in countries that are part of the Schengen area, the arrivals from Turkey to Greece continued resulting in a great number of migrants and refugees stranded in Greece.

Because of its geographical location within the migration routes, the European Union and its Member States pay special attention to cooperation with Turkey. In dealing with this migration crises, existing instruments emerged as inappropriate, and new measures were deemed necessary to replace the irregular migration with organized, safe, and legal channels to Europe.

EU-Turkey statement

In 2015, the European Union and Turkey have negotiated a number of instruments regarding the flow of migrants coming from Turkey to the European Union, including a Joint Action Plan activated on November 29, 2015.[4]  The plan aimed at strengthening cooperation to prevent irregular migration and included financial support from the EU to Turkey.[5] More negotiations followed,[6] and in a press release published on March 18, 2016, the Council of the European Union announced through a joint statement that the EU and Turkey agreed on certain additional points,[7] important issues included[8]:

  • As of March 20, 2016, migrants crossing from Turkey into Greek islands will be returned to Turkey, a measure that was deemed “temporary and extraordinary” but “necessary to end the human suffering and restore public order.”[9]
  • For every Syrian being returned to Turkey, another legally registered Syrian refugee will be resettled from Turkey to the EU, up to a maximum of 72,000 people (so-called “one-for-one deal”[10]).
  • The EU will speed up the disbursement of previously allocated 3 billion euro, and mobilize funding of an additional 3 billion euro until the end of 2018.
  • Turkey will take any necessary measures to prevent new sea or land routes for illegal migration open from Turkey to the EU.
  • The EU will accelerate the fulfilment of visa liberalization for Turkish citizens.

The purpose of these action points was “to break the business model of smugglers and to offer migrants and alternative to putting their lives at risk.”[11] The EU tried to limit the overwhelming flow of smuggled refugees coming from Turkey via the Aegean to the Greek islands resulting in numerous shipwrecks and deaths on sea. The process of implementing the statement was monitored and coordinated by the European Commission. The deal raised many legal and political issues.

Question of legality and the General Court’s decisions

The EU-Turkey statement has been one of the most controversial policy steps taken by the EU and its Member States in recent year.[12] Intergovernmental organizations as well as human rights NGOs have criticized the deal,[13] and especially its legality should be questioned.

When examining the legality of the statement, we first have to assess the legal nature of the so-called “statement.”[14] While the name and form alone cannot be decisive, the facts that it is not called “agreement” and that it has a different form than international agreements usually have – it does not contain any signatures for example – indicates that it is not intended to be a binding international agreement. Additionally, it was not concluded following the required procedures of the Treaty on the Functioning of the European Union.[15] It appears that the statement constitutes a simple political commitment between the parties.[16]

The form of a document, however, is not as important in determining its legal nature as its aim and content which are essential criteria.[17] The document institutes a number of commitments for the EU, and has therefore a similar content to that of an international agreement. The use of certain terminology, words like “decided” and “agreed,” shows that the commitments have a normative and binding character.[18] Based on this assessment, the deal seems to constitute an international agreement.

If the EU-Turkey Statement indeed is an international agreement with the EU as a party, judicial examination before the European courts would be possible. In early 2017, the General Court dismissed three cases brought by asylum seekers who were affected by the deal on the ground that it lacked jurisdiction to hear them.[19] The court reasoned that the deal was not an act of an EU institution, but that of the Member States.[20]

The cases were brought by Afghan and Pakistani nationals who came to Greece from Turkey by boat after the EU-Turkey statement was implemented. In Greece, they were forced by Greek authorities to submit their asylum applications. Pursuant to the EU-Turkey statement, they face the risk to be returned to Turkey if their applications are rejected, so they decided to challenge the legality of the statement. They argued before the court that the EU-Turkey Statement was an act attributable to the European Council establishing an international agreement between the European Union and Turkey, and sought annulment of the act[21] because the established process to conclude international agreements by the EU was not followed.

The Court states in its three Court Orders that there were inaccuracies in the press release that announced the statement as to the identification of the authors of the EU-Turkey statement.[22] The press release indicates that it was the EU, not its Member States who acted, and that it was the “Members of the European Council”[23] who had met with their Turkish counterpart during the meeting which gave rise to the press release. The Court examined the evidence provided by the European Council regarding the meetings on the migration crisis held in 2015 and 2016 and concluded that it shows that it was indeed not the EU but its Member States who conducted the negotiations.[24]

The Court specifically stated that there were actually two different events that took place on March 17 and 18, 2016: First, on March 17, 2016, the European Council, as an institution of the European Union, held a session with representatives of the Member States acting in their capacity as members of the European Council.[25] Second, an international summit took place on March 18, 2016, where representatives of the Member States acted in their capacity as Heads of State or Government.[26] The Court states that the two events were organized in parallel in distinct ways from a legal, formal and organizational perspective, confirming the distinct legal nature of those two events.[27] The second meeting had taken place in the same building as that used for the meetings of the European Council for reasons of costs, security and efficiency.[28] Thus, the Court concluded that neither the European Council nor any other institution of the European Union decided to enter into an agreement with the Turkish government regarding migration,[29] and that it therefore does not have jurisdiction to review the lawfulness of the statement.[30]

The three Court Orders have been appealed to the Court of Justice of the EU,[31] and decisions are still pending. Whether the Court will take a different approach than the General Court remains to be seen.

Further analysis and critique

With view to these three decisions outlining that it was not the EU or any of its institutions acting, the question becomes whether the Member States were competent to act on their own. The instruments and procedures to conduct law- and policy-making within the European Union are laid out in the TFEU. Pursuant to Art. 2(2) TFEU, in areas of shared competences which includes area of freedom, security and justice (Art. 4(2)(j) TFEU), Member States are only allowed to exercise their competence to the extent the European Union has not exercised its competence. Since the European Union has exercised its competence in this specific area, Member States are precluded to enter into an agreement with Turkey on that topic.[32] Some scholars therefore conclude that the Member States had no competence to act in any way on issues covered by the deal.[33] Other scholars state that the EU-Turkey deal constitutes a “new mode of action at the European level”[34] and even called it a “strange legal creature.”[35] The critique is that this crisis-led governance circumvents the democratic and judicial checks and balances laid down in EU treaties.[36] Determining the responsible actors became more difficult with the decisions of the General Court, and that constitutes a serious challenge to the transparence, accountability, and quality of EU decision-making.[37] Furthermore, a crisis should not exempt European Union actors from their obligations, in the end “the legitimacy of the EU project is at stake.”[38]

Practical implications – were the objectives achieved?

            Putting the legal and political controversies aside, the practical effects of the EU-Turkey Statement were immediate: arrivals decreased dramatically from more than 10,000 migrants arriving in a single day in October 2015 to around 43 daily arrivals in March of 2016.[39] The number of deaths in the Aegean decreased from 1,145 in the year before the EU-Turkey Statement to 80 in the following year. Although arrivals sharply decreased after the EU-Turkey deal was implemented, the United Nations refugee agency statistics show that still about 26,000 people made the treacherous journey via the Eastern Mediterranean route between January and September of 2017.[40] With a decrease of arrivals, the total number of deaths also went down. However, critics point out that the number of those who either died or went missing at sea has never fallen below 3,000 per year (this number relates to total deaths in the Mediterranean Sea, not only on the Eastern route).[41] In fact, there are fewer people attempting the journey, but the risks of dying in the Mediterranean have only grown as smuggling networks employ more dangerous routes and methods using smaller, overcrowded vessels that are not seaworthy: In 2015, there was a 1 in 269 chance of dying or going missing at sea for those who crossed the Mediterranean; in 2016, the number increased to a 1 in 71 chance; and 2017, the odds rose to 1 in 55.[42]

Conclusion

While the legality of the EU-Turkey Statement is controversially discussed, it seems to be delivering on its main objectives of reducing the number of migrants arriving irregularly to the EU and the loss of lives in the Aegean. The question remains, however, whether a focus on containing the migration flow is desirable and effective when migration is a far more complex phenomenon.

 

Julia Roberts is Staff Editor with the Denver Journal of International Law and Policy, and a 1LE at University of Denver Sturm College of Law.

______________________________________________________________________________________________________________________________

[1] Elizabeth Collett, The Paradox of the EU-Turkey Refugee Deal, migration policy institute (Mar. 2016), https://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal

[2] European Commission, Factsheet EU-Turkey Statement – One year on, Eur. Agenda on Migration – Factsheets (Mar. 17, 2017), https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/eu_turkey_statement_17032017_en.pdf.

[3] Id. The Schengen area is an area between twenty-six European Union countries where boarder checks have largely been eliminated to allow free movement throughout the entire zone.

[4] European Commission Press Release MEMO/15/5860, European Commission – Fact Sheet

EU-Turkey joint action plan (Oc. 15, 2015).

[5] Id.

[6] See generally Narin Idriz, The EU-Turkey Statement or the ‘Refugee Deal’: The Extra-Legal Deal of Extraordinary Times?, 2017-06 Asser Inst. for Int’l & Eur. Law Res. Paper 4-5 (2017).

[7] European Council Press Release 144/16, EU-Turkey statement, 18 March 2016 (Mar. 18, 2016).

[8] Id.

[9] Id.

[10] Kenan Malik, The dark side of the EU-Turkey refugee deal, Al Jazeera Media Network (Mar. 9, 2016), http://www.aljazeera.com/indepth/opinion/2016/03/dark-side-eu-turkey-refugee-deal-160309080433064.html

[11] European Council Press Release 144/16, supra note 7.

[12] Idriz, supra note 6, at 2.

[13] See Idriz, supra note 6 at 6.

[14] European Council Press Release 144/16, supra note 7.

[15] Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47 [hereinafter TFEU].

[16] Constanța Mătușescu, Considerations on the Legal Nature and Validity of the EU-Turkey Refugee Deal, IV Int’l J. of L. & Juris. Online Semiann. Publ’n 95 (2016).

[17] Id. at 97.

[18] Id.

[19] Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 (Feb. 28, 2017); Case T-193/16, NG v. European Council, ECLI:EU:T:2017:129 (Feb. 28, 2017); and Case T-257/16, NM v. European Council, ECLI:EU:T:2017:130 (Feb. 28, 2017).

[20] See, e.g., Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 at ¶ 73 (Feb. 28, 2017).

[21] See, e.g., Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 (Feb. 28, 2017).

[22] See, e.g., id. at ¶ 53.

[23] European Council Press Release 144/16, supra note 7.

[24] See, e.g., Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 at ¶ 49-55 (Feb. 28, 2017).

[25] See, e.g., id. at ¶ 63-64.

[26] See, e.g., id. at ¶ 63.

[27] See, e.g., id. at ¶ 62.

[28] See, e.g., id. at ¶ 63.

[29] See, e.g., id. at ¶ 71.

[30] See, e.g., id. at ¶ 73.

[31] See Idriz, supra note 6 at 14.

[32] Idriz, supra note 6 at 11.

[33] Idriz, supra note 6 at 13.

[34] Mătușescu, supra note 16 at 100.

[35] Sergio Carrera, Leonhard den Hertog & Marco Stefan, It wasn’t me! The Luxemburg Court Orders on the EU-Turkey Refugee Deal, CEPS Policy Insight No. 2017/15, Apr. 2017, at 2.

[36] Mătușescu, supra note 16 at 100.; and Carrera, et al., supra note 35 at 8.

[37] Carrera, et al., supra note 35 at 7.

[38] Id. at 13.

[39] European Commission, supra note 2.

[40] United Nations High Commissioner for Refugees, Desperate Journeys, Update January through September 2017 (Nov. 2017), https://data2.unhcr.org/en/documents/download/60865.

[41] See id.

[42] Priyanka Boghani, The “Human Cost” of The EU’s Response to the Refugee Crisis, Pub. Broad. Serv. (Jan. 23, 2018), https://www.pbs.org/wgbh/frontline/article/the-human-cost-of-the-eus-response-to-the-refugee-crisis/.

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The Principle of Non-Refoulement: The Legality of Refugee Caps Amidst Record High Migration Rates

Photo Credit: Steve Evans

This article will discuss the illegality of refugee caps under international law. The first section will discuss the binding customary principles of non-refoulement and the right to seek asylum. The second section uses the United States’ and Austria’s attempt to cap refugees to explore the inconsistency of refugee caps in international law, while the third section will argue why a plain-language reading of the principle of non-refoulement is unreasonable. Finally, this paper explains that working together provides a way for countries to find relief from the burden of mass migration.

Introduction

The number of those forced to flee their homes each year is on the rise. The number of forcibly displaced persons in the world was at a record high of 65.6 million people in 2016, including approximately 22.5 million refugees and 2.8 million asylum seekers.[1] Of those,

552,200 people were returned to their homes, often in dangerous conditions, while countries admitted only 189,300 for resettlement.[2] Developing countries have the highest migration rates, but also overwhelmingly bear the burden of accepting migrants. In 2016, the top six countries hosting the highest number of refugees are all developing countries.[3] Turkey hosted the highest number for the third year in a row at 2.9 million, while Lebanon had the highest number of refugees relative to its population with one refugee for every six people.[4]

Developed countries, however, remain reluctant to receive refugees. Responses to the growing number of migrants and refugees are alarming. Many countries are responding to the crisis by placing caps on the number of refugees allowed into the country on any given day, month, or year. President Trump’s “travel ban” not only limited who could enter the U.S., but also capped the number of refugees it would allow to enter the country at 50,000 for the year 2017.[5] Equally controversial, in 2016, Austria announced it would place a cap on the number of refugees allowed to apply for asylum or pass through the country each day.[6] Though the European Union warned Austria that the cap would violate international law, Austria only cancelled their plan to cap refugees because the number of refugees decreased.[7]

The legality of these actions is questionable. The United States’ Ninth Circuit Court of Appeals recently ruled that there was no justification for the Executive Order’s cap on refugees, holding that allowing more than 50,000 refugees would not be detrimental to the United States, a precondition for capping refugee numbers.[8] The European Commission criticized Austria, claiming that it had an obligation to accept refugees and to do otherwise would violate the Geneva Convention.[9] Countries do in fact have obligations to refugees under international law and refugee caps appear to contradict those obligations. However, with on-going wars, terrorism, and climate change, as well as the steadily increasing number of migrants, countries will continue to attempt to implement measures like refugee caps, as the “migrant crisis” is unlikely to go away anytime soon.

A country’s obligations to refugees under international law

The most important instrument regarding refugees under international law is the 1951 Convention on the Status of Refugees.[10] One of the fundamental principles laid out by the Refugee Convention is the principle of non-refoulement, stating that no country may “expel or return. . . a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[11] The principle of non-refoulement is customary international law, meaning even those states which are not parties to the Refugee Convention, or its 1967 Protocol,[12] are obligated to abide by the principle.[13] The principle of non-refoulement is also non-derogable, meaning that there 1V0-603 are no exceptions where a state may refuse to comply with the principle.[14]

In addition to non-refoulement, there is also a right to seek asylum.[15] In 1948, the United Nations General Assembly, which later laid the basis for the Refugee Convention, explicitly recognized a right to seek asylum in the Universal Declaration of Human Rights.[16] Article 13(2) states that “everyone has the right to leave any country, including his own, and to return to his country,” while article 14 states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”[17] Additionally, the International Covenant on Civil and Political Rights (ICCPR), supports these principles, and dictates that all persons have the right to leave his or her own country.[18] The UNHCR has also declared a right to asylum, attaching it to the “fundamental principle of non-refoulement [which] should be maintained at all times.” [19]

The U.S. and Austria’s justifications for capping refugees are inconsistent with international law

President Trump’s Executive Order cites national security as a reason for capping the number of refugees allowed into the United States at 50,000 per year, stating that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus [I will] suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.”[20] Similarly, Austria justified 1Z0-804 its plan to cap the number of refugees filing asylum claims at the border at 80 per day, and those travelling through Austria to Germany at 3,200 per day, claiming that it was unfair to require Austria to take on more refugees and that it was “unthinkable” that Austria alone should be responsible for the refugees.[21] Further, the countries also claim that they are not in violation of the principle of non-refoulement, arguing that the principle only applies to those already in the country. For example, in Sale v. Haitian Centeres Council, Inc., the United States Supreme Court held that by intercepting Haitian refugees at sea and retuning them to Haiti, the United States was not in violation of the principle of non-refoulement because the principle only applied to “those aliens physically present in the host country.”[22]

However, as a whole, the international community disagrees with this assessment. While the Refugee Convention allows states to suspend certain rights of refugees in very rare cases, this exception only applies “in time of war or other grave and exceptional circumstances.”[23] This exception does not include economic concerns, concerns over public order, or national security.[24]

Further, there is criticism of the idea that refugees are only protected when physically in a country.[25] The principle of non-refoulement today is generally understood to include the obligation to not reject refugees at the border.[26] In 1981, the UNHCR explained that non-refoulement “must be scrupulously observed” and included non-rejection at the border.[27] These obligations to refugees and asylum seekers applies even in cases of mass migration influx.[28]

Additionally, numerous regional and multilateral conventions and declarations by international bodies provide that non-refoulement includes non-rejection. For example, the Cartagena Declaration on Refugees, specifically “reiterate[s] the importance and meaning of the principle of non-refoulement (including the prohibition of rejection at the frontier) as a corner-stone of the international protection of refugees….”[29] The OAU Convention Governing Specific Aspects of Refugee Problems in Africa also provides that “[n]o person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened….”[30] Moreover, when read closely, the Refugee Convention seems to imply that rejecting refugees, or capping the number allowed in a country, violates non-refoulement, as it states that there may be no refoulement “in any manner whatsoever.”[31]

A plain language interpretation of the Refugee Conventions renders the obligation of non-refoulement meaningless

A plain language interpretation of the Refugee Convention also leads to an absurd result. If non-refoulement applies only to those already in the country, seemingly every country could take the stance to cap the number of refugees each year, either stranding millions of refugees and asylum seekers in limbo or sending them back into danger by forcing them to return home. The right to leave one’s country and the right to seek asylum also lead to a necessity of receiving, and not rejecting or capping refugees and asylum seekers. If countries can place caps on refugees, an asylum seeker may never be able to utilize his or her right to seek asylum, for there would be no one willing to review the application. The idea that countries can essentially ignore the obligation of non-refoulement and the right to seek asylum by refusing to accept any refugees would render both the Refugee Convention and the customary norm meaningless.

Moreover, whether all persons seeking refugee status actually qualify is irrelevant. As mentioned above, there is a right to at least seek asylum. Additionally, the UNHCR has stated that “a person does not become a refugee because of recognition, but is recognized because he or she is a refugee.”[32] Thus, non-refoulement includes both those who already have refugee status and those who “have not yet had their status formally declared.”[33]

Regardless of the arguments against non-rejection, the actions of developed countries like the United States and Austria imply that they do in fact consider there to be a right of non-refoulement as well as a right to seek asylum. Developing countries routinely bear the weight of the refugees their developed neighbors are unwilling to take. In fact, the United States and the European Union expect other countries to prevent refugees from crossing their shared borders. In response to a massive influx of migrants from Central America, President Obama pressured the Mexican government to increase its border security in order to help curb the flow of migrants into the United States.[34] Similarly, the European Union provides aid to Turkey in return for Turkey’s help to reduce the number of refugees that might otherwise make their way to the European Union.[35] These expectations are simply examples of pushing other countries to take on a higher burden in the refugee crisis while limiting their own obligations towards refugees.

Helping other countries provide assistance to refugees implies that countries like the United States realize that refugees are entitled to protections, but that they do not want to fulfill that obligation themselves. Expecting other, usually less developed countries, to take on the obligations of developed countries, makes developed countries appear as though they are exempt from their international obligations.

Cooperation among countries is intended to make the principle of non -refoulement less burdensome

There is no denying that the continually growing number of migrants and refugees takes a toll on every country. However, there are possible solutions, unlike the approaches of the United States and Austria, that help countries reduce the burden of hosting refugees, while also complying with international law. While countries are not required to permanently admit refugees, they must temporarily admit refugees until finding a satisfactory solution to adequately assist them.[36] Countries should work together bilaterally, multilaterally, and universally to determine how to work together during mass influxes of migrants.[37] Additionally, countries are encouraged to provide assistance to those countries most heavily affected by large numbers of refugees. Assistance includes providing financial aid or other emergency assistance to countries heavily affected, encouraging burden sharing among countries, and assisting with voluntary repatriation and resettlement in third countries.[38] Cooperation among countries is essential as “[n]o legal system can consider itself totally independent or self-sufficient enough for isolated unilateral application.”[39]

Conclusion

Though potentially burdensome, the principle of non-refoulement and the right to seek asylum are essential to the protection of millions of refugees around the world. Even if countries experience strain on their infrastructure, the principle of non-refoulement is non-derogable. To allow derogations would render a country’s obligations towards refugees and asylum seekers meaningless. Because of the great strain on a country hosting a large number of refugees, international cooperation is not only recommended, but essential. It is only possible to manage the refugee crisis when countries work together in solidarity. Countries must recognize this immediately, because as the number of migrants grows, the more difficult it becomes for any individual country to bear the burden.

 

Ali Sheets is a 2L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

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[1] U.N. High Comm’r on Refugees, Global Trends Report: Forced Displacement in 2016, at 2, June 19, 2017, http://www.unhcr.org/5943e8a34 [hereinafter Global Trends Report].

[2] Id. at 3.

[3] Id.

[4] Id.

[5] Exec. Order No. 13769, 82 C.F.R. 8977 (Jan. 27, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-02-01/pdf/2017-02281.pdf [hereinafter EO1]; replaced by Exec. Order No. 13780, 82 C.F.R. 13209 (March 6, 2017) https://www.gpo.gov/fdsys/pkg/FR-2017-03-09/pdf/2017-04837.pdf [hereinafter EO2].

[6] Duncan Robinson, EU says Austria asylum move breaches Geneva Convention, Financial Times (Feb. 18, 2018), https://www.ft.com/content/a415ef60-d651-11e5-829b-8564e7528e54.

[7]Austria says will not breach asylum cap, sidestepping rights row, Reuters (Dec. 13, 2016), http://www.reuters.com/article/us-europe-migrants-austria/austria-says-will-not-breach-asylum-cap-sidestepping-rights-row-idUSKBN142152

[8] Hawaii v. Trump, 859 F. 3d 741, 776 (9th Cir. 2017).

[9] Robinson, supra note 6.

[10] Convention Relating to the Status of Refugees, July 8, 1951, 189 U.N.T.S. 137 [hereinafter Refugee Convention].

[11] Id. at art. 33.

[12] Protocol Related to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267. The 1967 Protocol also binds parties to the Refugee Convention.

[13] U.N. High Comm’r on Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ¶ 15, June 26, 2007, http://www.unhcr.org/4d9486929.pdf [hereinafter Advisory Opinion].

[14] Id. at ¶ 11.

[15] Roman Boed, The State of the Right of Asylum in International Law, 5 Duke J. of Comp. & Int’l Law 1, 23 (1994).

[16] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

[17] Id.

[18] International Covenant on Civil and Political Rights, art. 12, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

[19] Conclusion on the Civilian and Humanitarian Character of Asylum No. 94(LIII), UNHCR Executive Comm. of the High Comm’r Programme on its Fifty-Third Session, U.N. Doc. A/AC.96/973 (2002), http://wwwunhcr.org/refworld/ docid/3dafdd7c4.html.

[20] EO2, supra note 5, at Sec. 6.

[21] Robinson, supra note 6.

[22] Sale v. Haitian Centeres Council, Inc., 509 U.S. 155, 187 (1993).

[23] Refugee Convention, supra note 10, at art. 31.

[24] James C. Hathaway & Anne K. Cusick, Refugee Rights Are Not Negotiable, 14 Geo. Immgr. L. J. 481, 491 (2000).

[25] Katy Long, No Entry! A review of UNHCR’s response to border closures in situations of mass refugee influx, ¶ 67, UNHCR, PDES/2010/07, Policy Development and Evaluation Service (June 2010), http://www.unhcr.org/4c207bd59.pdf.

[26] Id. ¶ 63.

[27] Protection of Asylum-Seekers in Situations of Large-Scale Influx Protection of Asylum-Seekers in Situations of Large-Scale Influx No. 22 (XXXII), at II(A)(2), UNHCR Executive Comm. of the High Comm’r Programme on its Thirty-Second Session, U.N. Doc. A/36/12/Add.1 (1981), http://www.unhcr.org/en-us/excom/exconc/3ae68c6e10/protection-asylum-seekers-situations-large-scale-influx.html [hereinafter Protection of Asylum Seekers].

[28] Id. at I(3).

[29] Organization of American States, Cartagena Declaration on Refugees, Nov. 22, 1984, at III(5), Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.

[30] OAU Convention Governing Specific Aspects of Refugee Problems in Africa, art. II(3), Sept. 10, 1969, 1001 U.N.T.S. 45.

[31] Refugee Convention, supra note 10, at art. 33; see also Advisory Opinion, supra note 13, at ¶ 7.

[32] Id. at ¶ 6.

[33] Id.

[34] David Nakamura, Obama thanks Mexico for ‘absorbing’ Central American refugees. His own administration wants to turn them away, The Washington Post, (Sept. 20, 2016),

https://www.washingtonpost.com/news/post-politics/wp/2016/09/20/obama-thanks-mexico-for-absorbing-central-american-refugees-his-own-administration-wants-to-turn-them-away/?utm_term=.7604ebfbe8d7.

[35] Elizabeth Collett, The Paradox of the EU-Turkey Refugee Deal, Migration Policy Institute (March 2016), http://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal.

[36] Protection of Asylum Seekers, supra note 26, at II(A).

[37] Id. at IV(2).

[38] Id. at IV(3),(4).

[39] Pablo Antonio Fernandez-Sanchez, The Interplay between International Humanitarian Law and Refugee Law, 1 J. Int’l Human. Legal Stud. 329, 381 (2010).

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The European Refugee Crisis: Unaccompanied Refugee and Migrant Children

Photo Credit: Getty Images

Photo Credit: Getty Images

The refugee and migrant influx into Europe continues. Since January 2015 approximately 1.2 million people have journeyed across the Mediterranean in an attempt to reach Europe. The majority arrive in Europe by sea, while almost 34,900 refugees and migrants arrived by land. These individuals are fleeing economic and social breakdown such as conflict, violence, and poverty, with the largest numbers leaving Syria, Afghanistan, and Iraq.

The crisis has had a substantial impact on children. UNICEF’s advocacy brief on the refugee and migrant crisis in Europe describes this crisis as a “children’s crisis.” By the end of December 2015, 1 in 3 refugees and migrants in Europe were children. And, based on arrivals in Europe since January 1, 2016, 27% were children.

Especially vulnerable are unaccompanied children. Children are among the most at risk of refugees and migrants – at risk of trafficking, exploitation, abuse, death, rape, and detention, among others. Unaccompanied children are those under the age of 18 years old and travelling alone. In 2015, approximately 25% of child asylum claims were made by unaccompanied and separated minors. However, it is difficult to gather accurate numbers of unaccompanied children because either they are not registering at borders or the country does not allow for their identification in formal registration procedures.

So, what is global community’s responsibility in addressing the issue of unaccompanied refugee and migrant children? According to the Convention on the Rights of the Child, the protection of unaccompanied children is a state obligation. One response to the problem of unaccompanied refugee and migrant children arriving in Europe was that of the United Kingdom, which passed the Immigration Act 2016, Section 67. The Act specifies that the “Secretary of State must… make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.” It further specifies that the number of children to be resettled will be determined by the government in consultation with local authorities. The Act does not specify a fixed number on arrivals in order to assess the local governments capacity and ability to help. The purpose is to resettle unaccompanied refugee children who have fled conflict in the Middle East and whom it is in their best interest to be transferred to the UK.

Although there are real considerations as to capacity and ability of countries to help unaccompanied refugee children, a greater effort should be made by the global community in collaboration with one another and individually to assist this especially vulnerable population as well as the refugee and migrant population as a whole.

Hannah Mitchell is a 2L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

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Gender-Based Asylum Claims: Why the United States Approves So few

somali_woman2

Somali woman and child

Under current asylum law, gender is not a protected ground for asylum. The United States, as well as many other countries around the world, first committed to the international community to protect the rights of refugees when it signed the Refugee Convention in 1951, the controlling international convention in refugee law.  A refugee, according to the Refugee Convention Article 1(A)(2) is an individual “who is outside his or her country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”

Any individual bringing a claim for gender-based asylum must do so under “membership in a particular social group.”  However, merely stating that the individual’s “gender” constitutes as a social group is not enough. The social group cannot be based on the persecution the individual faced, and has to be specific, immutable, and socially visible. There is a fear that if an immigration judge allows a social group that is too broad, it will set precedent for a flood of women to come and claim asylum in the United States.  Women, therefore, have had to describe their social group in convoluted and intricate ways, in order to be as specific as possible to be acceptable to immigration judge.  As one scholar notes, “applicants often define groups in ‘overly complicated and unnecessarily detailed’ ways, including characteristics such as marital status, age, education level, the absence of male protection, opposition to abuse, transgression of social/cultural norms, and past experiences of harm.” These social group formulations are very narrow, sometimes illogical, and almost comical in length.

Claims are especially difficult to bring when the persecution occurs within the private sphere—this means, the government of the country did not conduct the persecution, but instead, the members of the government refused to protect the individual from the violence.  When the persecution occurs within the private sphere, the persecution must be on account of that social group; the persecutor either has or will inflict harm or suffering “in order to punish him [or her] for possessing a belief or characteristic [the] persecutor[seeks] to overcome.”  The asylum seeker must show that the persecutor wanted to persecute her on account of her social group by providing evidence that the persecution occurred, which is often difficult within the private sphere, because there is often no witnesses or evidence.  Women around the world suffer violence, such as female genital mutilation, honor killings,  or domestic violence,  at the hands of their fellow community members because it is “culturally acceptable;” however, when they flee to the United States to avoid this violence, they face many obstacles in getting their asylum applications approved.

Kitty Robinson is a 3L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

 

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Mistaken as Terrorists: How innocent Syrian refugees are prevented from resettling in the US

The Syrian refugee crisis is one of the most horrific this generation has ever seen.

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

The United States, which has a long history of welcoming refugees into its borders and giving protection to those fleeing from persecution, has yet to put a significant resettlement initiative for Syrian refugees into motion. The United States has resettled 546 Syrian refugees since the crisis began.  UNHCR, on the other hand, hopes to resettle 50,000 Syrian refugees in 2015, and another 50,000 Syrian refugees in 2016 in permanent resettlement placements around the world.  The lack of action on the part of the United States is due, in part, to its strict immigration laws in regards to terrorism.  The Terrorism Related Inadmissibility Grounds (“TRIG”) sweep broadly over many individuals who are not dangerous in any way.  The TRIG statutory language, codified in the Immigration and Nationality Act (“INA”) prevents many innocent Syrians from finding a stable and safe living situation.

There are two areas of the INA that stand as a significant obstacle for many Syrian refugees wanting to resettle in the United States. First is the definition of “terrorist activity,” defined in INA §212(a)(3)(B)(iii) as “any activity that is unlawful under the laws of the place where it is committed.” Because the law defines any military action against a regime as “terrorist activity,” individuals who were once seen as friends of the Untied States are now labeled as terrorists. For Syrians, opposition fighters are labeled as terrorists and are excluded from entering the United States, even though the United States government supports them. In contrast, those who were in Assad’s army, which the United States opposes for its violations of international law, would still be admissible, because the statute only applies to non-state actors.

Second, many Syrians may be found inadmissible due to their insignificant material support to a Tier I or Tier II terrorist organization (designated terrorist organizations by the Secretary of State and Attorney General, respectively). In INA §212(a)(3)(B)(iv)(VI), the giving of material support to a terrorist organization labeled as “terrorist activity.”  DHS, in past oral arguments before the BIA, has stated that they would consider even the most minimal support given to a terrorist organization, like a glass of water or five cents, as material support.  Syrians deemed inadmissible due to their material support of a terrorist organization include a family that sheltered an opposition fighter in their home when their town was being bombed, a young boy who joined the opposition fighters for a short time when his father was killed, eventually leaving the war to join his mother and siblings, and even the man who sold falafel sandwiches to opposition fighters in a war-zone.

In order for the United States to continue its longstanding tradition of welcoming people fleeing from persecution, the TRIG laws need to be changed.  DHS needs to use its discretionary authority and expand the available TRIG waivers. Civilians living in Syria were subject to innocent contact with Tier I and Tier II terrorist organizations on a regular basis; this is the nature of living in a conflict zone.  The armed group that took control over the territory they lived in became their customers in their stores—innocent, insignificant material support is unavoidable.  Additionally, exceptions should be given on a case-by-case basis to former combatants who pass a security background check and are not barred for any other statutory reason, including those who were children at the time they were combatants, or to individuals who did not participate in targeting civilians.

Kitty Robinson is a 2L at the University of Denver and is the incoming Candidacy Editor for the Denver Journal of International Law and Policy  

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Critical Analysis: R2P – Whose responsibility is it?

Nigerian Refugees in Minawao, Cameroon. Credit: DW. http://www.dw.de/stranded-near-the-nigerian-border-a-visit-to-the-minawao-refugee-camp/a-18275323

Nigerian Refugees in Minawao, Cameroon. Credit: DW. http://www.dw.de/stranded-near-the-nigerian-border-a-visit-to-the-minawao-refugee-camp/a-18275323

On April 14, 2014 the hashtag #BringBackOurGirls began trending on Twitter as the abduction of 276 Nigerian schoolgirls in Chibok flooded news outlets around the world.  The Islamist group Boko Haram claimed responsibility for the kidnapping, and, with the exception of a few victims who have since escaped, the majority of the girls whereabouts are still unknown. According to UNICEF, in the year since the Chibok abductions, 1.2 million people in northeast Nigeria have been displaced due to Boko Haram-insurgency. Schools have been a target for Boko Haram since its militant operations began in 2009. In the past three years over 300 schools have been destroyed in the northern region of Nigeria, depriving 10,000 children of an education.

Perhaps the most troubling trends since Boko Haram’s reign of terror began have been the increasing number of the displaced being subject to human trafficking and Nigeria’s lack of effectiveness in preventing it from spiraling out of control. According to the Global Slavery Index an estimated 800,000 people are enslaved in Nigeria. However, by the Nigerian government’s own admission, 8 million children are currently subject to human trafficking. Many of those trafficked children are forced into labor, marriage, and prostitution. The displacement camps and their surrounding communities have had their access to humanitarian aid cut off by the violence, rendering them ineffective in supporting the overwhelming amount of refugees flooding their streets. The overcrowding, lack of food, and fear for safety has forced many young girls into prostitution, and young boys into joining the recruitment of Boko Haram in the armed conflict.

These atrocities have not gone unnoticed by the international community.

Hundreds of Nigerian Refugee Tents in Minawao, Cameroon. Credit: DW.

Hundreds of Nigerian Refugee Tents in Minawao, Cameroon. Credit: DW.

#BringBackOurGirls was tweeted 3.3 million times in the month following the kidnappings in Chibok, and UNICEF has responded by supplying 60,000 children with psychosocial support and by raising an estimated $3.84 million to further its efforts during 2015. Yetdespite worldwide awareness of the crisis in Nigeria the international community has done little. Similar to its inability to address the plight of the Palestinian refugees, international humanitarian law has yet again proven to be inefficient in address humanitarian crises in an urgent and effective manner. While intergovernmental organizations and state commenters have been in favor of implementing a Responsibility to Protect in these situations, they have yet to do so.

Is the lack of any real progress towards the implementation of Responsibility to Protect an indication that it may not be the answer to grave and immediate humanitarian atrocities? In late 2011, multiple states took a stand against a United Nations Security Council draft resolution draft on Syria’s violent response to the protests in Damascus against Syrian President Bashar Al-Assad. China and Russia vetoed the draft fearing that it would be construed by western states as legitimizing “unilateral sanctions and [an attempt] to forcefully overthrow regimes.” Brazil, India, South Africa, and Lebanon abstained from the vote, with South Africa expressly stating its concern that the resolution may be abused to justify implementation of “punitive measures on Syria.” Brazil, in its comments, stated its belief that “[a] meaningful, inclusive national dialogue leading to reform” was the only answer to the Syrian crisis.

Muhammadu Buhari, Nigeria’s President-elect, stated in an op-ed piece for the New York Times: “The answer to defeating Boko Haram begins and ends with Nigeria.” This is a unique answer for many states facing seemingly insurmountable issues with terror like that of Nigeria. However, it may very well be the key to effectively staving immediate humanitarian crises in the future. Buhari’s plans focus on Boko Haram’s target – education. Instead of waiting for the international community to accept its Responsibility to Protect Nigerian citizens from the atrocities committed by Boko Haram, Buhari seems prepared to set the onus on his own government, stating:

“My government will first act to defeat [Boko Haram] militarily and then ensure that we provide the very education it despises to help our people help themselves. Boko Haram will soon learn that, as Nelson Mandela said, ‘Education is the most powerful weapon which you can use to change the world.’”

It remains to be seen how effective Buhari’s government will be at shouldering the Responsibility to Protect in Nigeria. However, its success could go a long way in solving the conundrum of the international community: “whose responsibility is it?” In the meantime, the international community will continue to grapple with forming a framework in which the doctrine of the Responsibility to Protect can adequately address future humanitarian concerns.

Philip Nickerson is a 2L at the University of Denver Sturm College of Law and is Managing and Production Editor for the Denver Journal of International Law and Policy.

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Lawsuit challenges Japan’s high standard for refugees

Fumio Kishida

Japanese Foreign Minister Fumio Kishida, right, visits Zaatari refugee camp near Mafraq, some 8 kilometers (5 miles) from the Syrian border. Credit to: Asian Correspondent. http://cdn.asiancorrespondent.com/wp-content/uploads/2013/07/Mideast-Jordan-Japan_Crav_opt.jpg

In early March, four Syrian men filed a lawsuit against Japan’s Ministry of Justice, challenging the rejection of their refugee applications.  The group arrived in Japan in 2012 and applied for refugee status, citing the potential for persecution for their participation in pro-democracy protests against the Syrian government.  The Ministry rejected their refugee status in early 2013, and instead granted them each a temporary residence permit under a “humanitarian perspective.”  This type of permit allows the men to work full time and to participate in the national health care and other social programs.  But while this seems like a compromise, the permits must be renewed every year, unlike refugee certificates which are permanent; and permit holders are excluded from certain assistance programs such as language training and employment help that the government grants to certified refugees.  Perhaps the greatest disadvantage the lack of refugee status prevents for the Syrians is the difficulty, or near impossibility, it is to get their families into the country.  Their lawsuit seeks to obtain official refugee status and the full rights and protections that it provides.

Japan’s Immigration and Refugee Recognition Act explicitly refers to the 1951 Convention in its definition of “refugee” as well as in the reasons a temporary refuge may be granted at the border.  Further, the Ministry of Justice itself uses the Convention’s definition of a refugee in its guidelines for refugee status.  The Convention defines a refugee as a person who has a “well-founded fear” of persecution.  In practice, the Ministry tends to grant refugee status to those who are in danger of being “personally targeted” by their home government which, according to the lawsuit, is a higher standard than what the Convention requires.

The Convention’s language of having a “well-founded fear” is too vague on its face to offer any sort of guidance, and the term has no further definition anywhere in the Convention.  Instead, the United Nations High Commissioner for Refugees (UNHCR), provides a handbook to “guide government officials, judges, practitioners, as well as UNHCR staff applying the refugee definition.”  In this handbook, the UNHCR considers the term “well-rounded fear” to have both a subjective and objective element.  Subjective in the person’s motivation for seeking the refugee status; and objective in viewing that motivation within the context of their country of origin or what brought about the motivation in the first place.  When considering whether there is a “well-founded fear”, the UNHCR places most of the weight on the subjective element while the objective element provides a context to assess the credibility of the refugee.

With this framework in mind, will the Syrian refugees’ case against the Ministry be successful?  The answer, naturally, depends most notably on the Ministry’s use of “personally persecuted” when determining refugee status.  Assuming that the terms “personally persecuted” mean that the person is being targeted by their home government and will be arrested the moment they step off the plane, it would seem that the Ministry puts more weight on the objective element of having a “well-rounded fear” instead of the subjective element as the UNHCR states.  Indeed, if a requirement for refugee status is to be a target, then this would effectively do away with the term “well-founded fear of persecution” and replace it with “actual persecution.”  Supporting this interpretation are further explanations in the UNHCR handbook.  A refugee’s fear of persecution, according to the handbook, need not be based on their own personal experiences or the fact that they have previously been persecuted.  The fear could be based on persecution of people in a similar situation, or persecution of friends or family.  The UNHCR further considers that “fear” applies both to those who have actually been persecuted and those who wish to avoid being persecuted.  The Ministry’s standard of “personally persecuted” could be found to be incompatible with 1951 Convention and the standards of the UNHCR.

Japan has been a party to the 1951 Convention since 1981 and has given no reservations or declarations to any provision.  As such, the Ministry of Justice should be bound by the provisions in the Convention and it is likely that it has applied a higher standard than is necessary.  If the lawsuit is successful, it will provide hope for the hundreds of refugee seekers who have been denied the status due to Japan’s rigid and restrictive system.

Leonard Large is a 3L at the University of Denver Sturm College of Law and is Candidacy Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Protecting refugees in the midst of war

SYRIA-CONFLICT-PALESTINIAN-YARMUK

Destruction in Yarmouk. Credit: HaAretz. http://www.haaretz.co.il/st/inter/Heng/news/images/yar2.jpg

In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before.  They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city.  The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

Even before this ISIS invasion, al-Yarmouk was “a humanitarian nightmare.”  The camp was “ruled” by various factions and armed groups, siphoning scarce food away from the refugees and towards the fighters and their families.  For the last two years, the camp has been subject to a siege that has made the food situation even more grave.  Recently, al-Yarmouk had falled under the control of the Syrian rebel group Nusra Front, whom some eyewitnesses say were fighting alongside ISIS, but who has claimed neutrality in the struggle since. Now, the festering humanitarian crisis in al-Yarmouk has somehow gotten worse.  Mere days after this incursion began, reports of killings and beheadings had already circulated.  The Syrian government has dropped several barrel bombs on the camp. Just as deadly, United Nations Relief and Works Agency (UNRWA) has been unable to send its usual food or convoys into the camp since the fighting started.  This means that the 18,000 residents of the camp have no food, no water, and very little medicine.  Moreover, only 93 people have been evacuated, leaving the rest stuck in this deadly zone. If nothing is done, “Yarmouk shall remain a testament to the collective human failure of protecting civilians in times of war.” (Saeb Erekat, as quoted in the New York Times.)

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations.  There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)).  And yet, no one is protecting the 18,000 people trapped in al-Yarmouk.  No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself.  The Geneva Convention is designed to deal with states.  Neither ISIS nor Nusra Front is a state.  Therefore, neither feels bound to protect the civilians in al-Yarmouk.  It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle.  While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern.  So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect.  Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary.  If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives.  But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to?  If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis?  Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death?  Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers.  Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation.  If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law.  She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Accusations Against Australia’s Border Protection Policies

Over the past month, Australian navy and customs officers have been accused of towing or turning back boats carrying Indonesian asylum-seekers. Australian Prime Minister, Tony Abbott, has reported little about Australia’s asylum-seeker policies, fearing that exposing such information may create a tactical advantage in a wartime scenario. The United Nations High Commissioner for Refugees (UNHCR) has previously expressed concerns over how Australian policies of border protection might violate international responsibilities.  These new reports of towing and turning back Indonesian asylum-seekers now raises questions surrounding Australia’s adherence to international conventions and laws protecting refugees.

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Australia is just one of 144 states to have ratified the 1951 Convention relating to the Status of Refugees (Convention) and the 1967 Protocol amendment. In January of 1951, the United Nations General Assembly created the Office of the UNHCR to provide “international protection” to refugees.  The Convention became effective in 1954 and played an important role in the UNHCR’s international refugee policies and protections.

The Convention establishes several obligations that signatory countries must follow in order to provide appropriate protection and potential solutions for refugees. One such obligation is “non-refoulement,” a concept stating that “no refugee should be returned in any manner whatsoever to any country where he or she would be at risk of persecution.” Under this principle, countries party to this Convention should not return refugees to any country where they may face persecution, whether it is their home country or not.  Furthermore, the Convention provides refugees an exemption from penalties for illegal immigration and provides them with protection from expulsion from the country.

While Australian government officials have remained quiet on border protection policies, these reports and accusations of towing and turning back boats questions whether the Australian government is adhering to its obligations under the Convention.  Prime Minister Abbott and his staff maintain silence surrounding the details and/or accuracies of these accusations.  In response to questions surrounding the nation’s border control policies, Abbott stated “I’m pleased to say it is now several weeks since we’ve had a boat, and the less we talk about operational details on the water the better when it comes to stopping the boats.”

In addition to reports of towing and turning back boats, the Australian government has also been accused of purchasing lifeboats to be used in ushering asylum-seekers back to Indonesia.  Australian Operation Sovereign Borders commander Angus Campbell has admitted to the purchase of lifeboats, but mimicking Prime Minister Abbott’s policy of secrecy over government operations, has not stated the intended purpose for the devices.

Even Indonesian officials are angered by Prime Minister Abbott’s failure to open up about the specifics of the country’s border protection policies. Although Abbott has denied some of these allegations, he has failed to make reports on the details of the Australian immigration control policies.  Mark Dreyfus, active immigration spokesman for the Australian Labor Party, stated, “I’m not going to speculate because it’s for the government to explain the circumstances. It’s for the government to reassure Australians that everything that’s been done does comply with international law, that everything that’s been done complies with our obligations under the refugees convention.” Until the Australian government reveals the truth about their border protection operations, the rest of the world will continue to question the legality of their actions. 

Stacy Harper is a 3L at Denver Law and Marketing Editor for the Denver Journal of International Law and Policy.

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Children of Syria

Lost Futures – The Children of Syria

As many, if not all of you, know, the conflict in Syria continues to rage on, affecting thousands in Syria and the surrounding areas. What started out as a desire to move towards democracy in a peaceful fashion has turned into a bloody and unrelenting war that only continues to get worse. In fact, the Syrian government has recently been accused of using chemical weapons in its attacks against rebels causing dire effects on the local population. However, amongst all the atrocities one tends to forget or overlook the most devastated victims of this two-year conflict: the Syrian children.

Children of Syria

The Children of Syria – In Dire Need of Help
(HuffPo)

During all times of war, children usually bear the brunt of the negative consequences. The conflict in Syria has been no exception. The Save the Children foundation recently released a report that claims nearly two million children in Syria are currently endangered by the ongoing conflict. More than 500,000 of those currently affected in Syria are under the age of 5. Access to basic healthcare and education has also been severely limited, threatening the futures of these children. Furthermore, dismal living conditions have led to widespread disease and hunger among these children without a steady source of help to turn to. With at least 1 of every 5 schools in Syria destroyed, homes in ruins, and shelters quickly filling to capacity, it is not hard to see that hope for these children and the situation in general is dwindling.

The consequences are not simply physical, either. The Save the Children report notes at least 3 in 4 children have experienced death of a close friend or relative, leading to startling psychological consequences, such as extreme withdrawn or aggressive behavior. Furthermore, these children are being forced to endure other atrocities such as sexual violence, torture, and forced recruitment into the armed forces. This is only antagonized by the fact that many of these children have been displaced from their homes, separated from their families, and forced to find refuge in neighboring countries. How can one expect these children to lead a decent, semi-normal life when they are constantly exposed to these horrors?

Many of the countries that are taking in these refugees are struggling with the task. Jordan, a refuge for more than a half million Syrians, has recently been forced to open up a second refugee camp in Mrajeeb al-Fhood as the influx of Syrian refugees into the country continues to grow everyday. This means it might be even more difficult for the refugees, especially children, to get access to basic resources. While Jordan is actually able to provide these refugees with shelter, other countries lack the resources to do so. Currently, there are no UN-funded refugee camps in Lebanon, where some 400,000 Syrian refugees have fled. Adding to their suffering, these refugees must fear for their relatives still living in Syria, as their act of leaving the war-torn country has put them at great risk of execution and torture by the government. Many children, who escaped to the safety of countries such as Egypt or Iraq, will most likely never see their families who are still trapped inside Syria again.

Not all hope is lost, however. The sobering realities described above have prompted generous action. Governments of various nations have pledged funds to help child refugees who have been forced into surrounding countries. Recently, the government of Japan contributed $1.5 million to the United Nation Children’s Fund (UNICEF) to help the child refugees in Iraq. This money will go to basic sanitation, healthcare and education services. Also, the Mrajeeb al-Fhood refugee camp mentioned above is funded by the United Arab Emirates. Furthermore, the UN itself has taken extraordinary measures to ensure that the Syrian child refugees receive basic amenities. The World Food Programme (WFP), a project recently launched by the UN, provides refugee children with meals that support good nutrition and health. Along with the meals, the WFP has also set up programs to encourage children to continue their education, though they are displaced and have suffered much hardship.

The aid currently being provided is a promising start to providing hope for these children. However, not enough is being done. While many countries are making valiant efforts to help these children, UNICEF warns that those currently trapped in Syria are in danger of becoming a “lost generation,” as there is a severe lack of funding. Key agencies and life-saving aid may have to be halted, leaving those children in and around Syria without any help. UNICEF notes that it might not be able to provide Syrian children and their families with clean drinking water in the near future. The conflict seems so far away in our minds; however, we must remember those who have lost their futures because of this senseless violence.

If you would like to donate to the cause of these children, please visit this link: http://www.unicef.org.uk/landing-pages/donate-syria/.

 Bailey Woods is a 2L and a Candidacy Editor on the Denver Journal of International Law & Policy

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