REFUGEES, who made it to Vienna, on their way to Germany. BRANDON STANTON/CONTRIBUTOR
“I STUDIED to be a teacher, but I’m young, so I knew I’d be forced to fight. I don’t like fighting. I don’t like blood. But I was the only one working so I couldn’t leave or my family would go hungry. But my mother begged me to leave. She kissed my feet. She said she wouldn’t mind starving if she knew that I was safe.
“I hired a smuggler but he took all my money and left me at the border. He told me that he’d call me when the passage was safe, but then he turned off his phone. I was all alone and stuck without money. I called my mother and she said that she’d pray for God to send someone to help me.
“Then I met this man. I told him my story and he loaned me the money I needed to get to Europe. He treated me like one of his family. I’ll pay him back when I get to Germany, but until then I’m trying to return the favor by helping him carry his children.” (Vienna, Austria)
THESE were the words of a young man, presumably a Syrian refugee, who was interviewed by Brandon Stanton, creator of the widely popular project Humans of New York.
Stanton included quotes to the photographs of the subjects he interviewed, adding depth to the images.
For two weeks, he focused his subjects on those involved in the European refugee crisis, encouraging people to provide financial aid to the refugee cause, particularly to the office of the United Nations High Commissioner for Refugees (UNHCR).
The initiative is timely as the violence in Syria continues to escalate and stories such as the one above are being circulated to draw attention to the crisis.
Millions fleeing conflict
The young man (inset photo) is one of more than 300,000 refugees and migrants entering Europe through the Mediterranean Sea, according to the UNHCR. The political crisis in the Middle East and North Africa has pushed millions of people to flee the conflict and persecution in their homelands.
A majority of these asylum seekers enter the southern European countries, particularly Greece and Italy, which were heavily affected by the financial crisis in 2008.
The international law governing refugees is the 1951 Convention relating to the Status of Refugees. The convention has 145 state parties, including all member-states of the European Union (EU). It is an authoritative source of law on the recognition of refugees and is part of the wider international customary law.
Nonrefoulement
Article 33 (1) of the 1951 Convention prohibits the return of refugees to countries where there is a threat to their life or freedom due to their race, religion, nationality, membership in a particular social group or political opinion.
This concept is famously called principle of nonrefoulement or nonreturn. The 1951 Refugee Convention covers all manners of return, including returns to countries that in turn may return the asylum seeker to the defined unsafe territory.
To regulate unanticipated migration flows, European countries implement policies that discourage the entry of persons from outside the EU, also known as nonentrée policies.
The two European nonentrée policies, which could violate international law, are the return of asylum seekers to first country of entry under the Dublin System and bilateral agreements constituting the interception of migrants on territorial sea that is not within the country’s jurisdiction.
Threat of indirect return
Within the EU, the Dublin Regulation governs the determination of the state responsible for asylum applications. Its objective is to ensure that all claims are processed and to discourage secondary movements to states with more generous reception standards.
This works under the presumption that all EU member-states provide the same standard of protection and will result in an even distribution of asylum applications.
However, the collapse of the social systems in countries like Greece and Italy and their inability to accommodate the disproportionate number of persons seeking refuge strongly question this presumption.
The Dublin Regulation itself does not violate principles of nonreturn under Article 33 of the 1951 Convention. Return to safe countries does not expose the individual to threat to life or freedom.
However, an act of return that ultimately results in exposing the individual to the threat of persecution constitutes indirect return, which is prohibited by Article 33.
Similarly, Article 3 of the European Convention on Human Rights prohibits member-states of the Council of Europe from returning individuals to countries where there is a real risk of torture, or inhuman or degrading treatment.
The Dublin Regulation has a reputation for failing in its objective to secure asylum seekers’ right to seek asylum by definitively allocating responsibility to a member-state with a failed asylum system.
The majority of asylum seekers enters the EU through southern states, resulting in a disproportionate allocation of responsibility of processing asylum claims.
For example, the Greek asylum system fails to cope with the responsibility to process 90 percent of illegal border-asylum claims. It applies the 1951 Convention restrictively, providing only limited grounds for challenging the decision to return.
Sovereignty clause
Article 3(2), also known as the sovereignty clause, gives states the discretion to waive only their right to return the applicant and take responsibility of processing the asylum claim.
The Dublin System does not provide adequate safeguards from wrongful returns. The grounds for appealing transfer are not sufficiently precise and the procedure relies on domestic mechanisms to provide a remedy.
In August 2015, Germany used the sovereignty clause under the Dublin Convention by allowing asylum claims from Syrians instead of deporting them under convention rules.
Welcome German move
The instructions made by the German Federal Office for Migration and Refugees to exempt Syrian asylum seekers from the Dublin rule is a welcome move that reflects the need to overhaul the European Union’s asylum system.
The UNHCR has been actively using its supervisory mandate to flag the situation in Greece, advising states to refrain from returning asylum seekers to countries such as Greece and recommending the use of Article 3(2) of the Dublin Convention.
Dublin transfers also violate the Article 3 prohibition of torture by sending asylum seekers to countries where the reception conditions are remarkably inadequate.
Intercepted at sea
One of the ways states control the flow of irregular migration is through interception of migrant boats on the high seas to prevent these boats from reaching their territory. Most of these migrants come from North Africa, with the intention of pursuing a better life or fleeing armed conflict.
This is further complicated by activities of trafficking and smuggling networks that take advantage of individuals affected by these difficulties.
The 1951 Convention obligates states to ensure that refugees within these mixed migration groups are protected from illegal return and granted protection in compliance with international law.
The UNHCR is concerned that interception on the high seas does not adequately differentiate the different types of migrants. State officials involved in interception are not effectively briefed on the distinction between refugees and other types of migrants.
Refugee defined
The 1951 Convention defines a refugee as a person who due to “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership [in] a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”
This is determined through a refugee determination process once the person applies for asylum in the destination country.
Additionally, cooperation agreements entered into by European states which involve return of migrants at sea must be protection-oriented. This includes, as an example, an agreement between Italy and Turkey that facilitates the return of migrants crossing the Mediterranean.
States that fail to provide international protection to persons who qualify as refugees are at risk of violating international refugee and human rights laws.
Interception at sea is not a durable solution to the problem of irregular migration. It only diverts smuggling and trafficking routes to other parts of the region, shifting the disproportionate burden of receiving undocumented migrants and asylum seekers.
Address root of problem
The root of the problem must be addressed to minimize the push and pull factors of migration. Push policies and fencing measures are ultimately ineffective in combating illegal migration where the real driving force is the economy and labor market. Most irregular migrants do not enter the EU through the sea.
Furthermore, policies of regularization reflect the demand for certain cheap labor, resulting in the lack of policy coherence that endangers the lives of many and fueling hostility toward third-country nationals.
Despite the fact that interception does not occur within the intercepting state’s territory, the UNHCR argues that states have a responsibility to ensure that acts performed by their officials adhere to the 1951 Convention regardless of the location of such acts.
This means that interception at sea, where it results in dangerous returns, is held liable under international law. Similarly, a human rights reading of the 1951 Convention gives Article 33 on nonreturn an extraterritorial application.
Under international law, human rights law and refugee law have a complementary and mutually reinforcing relationship.
Politically entrenched crisis
In September, the EU approved a scheme to share 120,000 refugees across its 28 member-states, despite opposition from four countries (Czech Republic, Slovakia, Romania and Hungary).
Half of this number will be relocated from Greece and Italy. Although it is a good step toward burden-sharing, this is clearly insufficient.
According to the UNHCR, 120,000 is equivalent to the number of arrivals in only 20 days at the current rate. A more comprehensive and immediate response is required to address present demands.
As much as the problem is caused by political instability in the Middle East, and problematic asylum and migration policies in Europe, the solution depends largely on genuine cooperation among European states to solve the crisis in the best interests of those whose human rights are most affected and the citizens of Europe.
Sadly, countries tend to view these two interests as conflicting when, in fact, they need not be. I believe the crisis stemmed from a lack of international support when troubles in Syria escalated. This is further aggravated by weak responsibility-sharing among European countries.
Migrants, who are best integrated in the society they moved into, are those who can contribute the most to that society. Push policies that disregard people’s human rights and dignities are hugely counterproductive.
Generosity
The refugee crisis calls for the generosity of people who encounter asylum seekers firsthand, citizens of Europe, and most especially persons in powerful government positions who are able to make the political decisions to cooperate with each other and implement policies that will protect refugees’ most basic human right to live.
As ordinary citizens, we can try our best to lobby states through reputable nongovernment organizations, support humanitarian organizations, such as the UNHCR, and keep the conversation going in the right direction—toward the understanding that we are all ultimately responsible for each other.
(Julliane Moira Sy studied undergraduate law and postgraduate international law at the University of Bristol, United Kingdom. Her article on the UNHCR and indirect refoulement in Europe was published in the International Journal of Refugee Law this year. She works for the Tobacco Free Initiative of the World Health Organization in Geneva, Switzerland.)