The Shadow of Syria: Why To Protect Refugees? - PowerPoint Presentation

Slide1

The Shadow of Syria: Why To Protect Refugees?

Boldizsár

Nagy

Legal Research Network Summer School 2012

17

September

2012

Budapest, ELTE,

Dean’s

Council

RoomSlide2

Syria a torturing regime

Source

: HRW:

Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in

Syria’s Underground Prisons since March 2011

,

July

2012

available

at

http://www.hrw.org/sites/default/files/reports/syria0712webwcover_0.pdf

visited

13

September

2012Slide3

„More than 250,000 Syrians have to date registered or applied to register as refugees in Turkey, Lebanon and Jordan, but the real number of those who have fled the fighting could be much higher.”

UNHCR 13 September 2012

http://www.unhcr.org/5051ef1c9.html

http://unhcr.org/v-50129c266

Za'atri refugee camp in Mafraq, JordanSlide4

A boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted.

All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days.

"Every morning we would wake up and find more bodies, which we would leave for 24 hours and then throw overboard," said Abu Kurke, one of only nine survivors. "By the final days, we didn't know ourselves … everyone was either praying, or dying."

Nothing new….

Guardian, reporting on 8 May 2011

Source_

http://www.guardian.co.uk/world/2011/may/08/nato-ship-libyan-migrants

, visited 9 May 2011

Presentation by Boldizsár NagySlide5

The Berlin Wall 1961 – 1989 and

the frontier around Europe

During the Wall's existence there were around 5,000 successful escapes into West Berlin. Varying reports claim that either

192 or 239 people were killed

trying to cross and many more injured.

http://en.wikipedia.org/wiki/Berlin_Wall

visited 25 February 2006

Source

:

http://www.unitedagainstracism.org/pdfs/listofdeaths.pdf

visited

13

September

2012

Presentation by Boldizsár NagySlide6

Recent statistics about asylum applications in the EUSlide7

If persons could freely cross international borders, there would be no need to exempt refugees from entry conditions

So, why to make that exception from the general exclusion, why to protect those who flee oppression, persecution, torture, inhuman treatment?Slide8

Two alternative argumentative routes to overcome borders as barriers

Presentation by Boldizsár Nagy

A

right to enter for everyone including asylum seekers and refugees

An exceptional right - against the general ban to enter if

entry conditions not met

Migration without borders (or: open borders) scenario

The

right to exclude foreigners curtailed by the right of the asylum seeker/refugee to enter even if general immigration criteria not metSlide9

The migration without borders (open borders) scenario

Thinking about the unthinkable?

Meaning: a right to enter and settle on the territory of a state irrespective of the nationality of the migrant and without the requirement to meet any specific condition (if no exclusion grounds apply)

Not

:

„abolition of the borders”

lack of border controls

loss of right to exclude certain individuals

Presentation by Boldizsár NagySlide10

Universal regime

The right to leave one’s country and to return is recognised (UDHR, Art 13 (2), ICCPR, Art 12 (2))

ICCPR: „Everyone shall be free to leave any country, including his own”

Regional regimes

EU

TFEU, Art. 20

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:(a) the right to move and reside freely within the territory of the Member States;

Charter of

Fundamental

Rights,

Article 45

Freedom of movement and of residence

1. Every citizen of the Union has the right to move and reside freely within the territory of the

Member States.2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.

Other regimesUK-Ireland: common travel areaECOWAS Economic Community of West African States For details with other regions see:

http://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/microsites/IDM/workshops/free_movement_of_persons_18190607/idm2007_overviewchart.pdf

_____________________________________________________

In all regions certain limitations apply

EU: removal only if based on grounds of public policy or public security and be based exclusively on the personal conduct of the individual concerned. That conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

DIRECTIVE 2004/38/EC

, on the right of citizens of the Union and their family members

to move and reside freely within the EU territory, Art 27

The law as it standsSlide11

MWB / Open borders

Joseph Carens, 1987:

"Borders have guards and guards have guns"

"on what moral grounds can …people be kept out? What gives anyone the right to point a gun at

them

?”

"Liberal theories focus attention on the need to justify the use of force by the state. Questions about the exclusion of aliens arise naturally from that context."

Presentation by Boldizsár NagySlide12

MWB /Open borders

In favour

Fundamental human liberty

Intra-state analogy (free movement in federal states)

Citizenship/domicile privileges not justifiable

Duty to alleviate poverty

Cultural differences and bounded communities may be preserved even in a free movement scenario

Would (greatly) increase world economic output

Against

Priority for fellow nationals/countrymen

Public order (chaos in large scale influx)

Protection of democracy (from its opponents)

Solidarity in social services – different standards in different countries

Preservation of ethno-national culture

Preventing brain drain

Presentation by Boldizsár NagySlide13

10

POSSIBLE

ARGUMENTS

SUPPORTING THE VIEW THAT REFUGEES ARE (SHOULD BE) ENTITLED TO PROTECTION EVEN IN TIMES OF IMMIGRATION CONTROLSlide14

Brubaker and Cooper: Identity: overburdened – three clusters of meaning

A)

Identification and categorization (pp.14-16)

External categorisation (e.g. by the state) or self identification

Relational (e.g. kinship) categorical (e.g. profession)

B) Self-understanding and social location

„It is a dispositional term…one's sense of who one is, of one's social location, and of how (given the first two) one is prepared to act.” (p. 17) C) Commonality

, connectedness, groupness (part of self understanding)„’Commonality’ denotes the sharing of some common attribute, "connectedness" the relational ties that link people. Neither commonality nor connectedness alone engenders "groupness" – the sense of belonging to a distinctive, bounded group

involving

both a felt solidarity or oneness with fellow group members and a felt difference

from or even antipathy to specified outsiders

.” (p. 20.)

IdentitySlide15

Construction of the self (Identity)

Shared identity (imagined community)

global: altruism – member of human race (liberal egalitarian arguments)

ethnically/culturally/religiously determined „one of us” (communitarian, ethno-nationalist)

„The bank of history” - repaying historic debt accumulated by own community (remembering predecessor refugees who found asylum – communitarian)

Presentation by Boldizsár NagySlide16

Construction of the self (identity)

Difference-based

indigenous – foreigner (hospitality)

rich – poor (altruism, solidarity, moral command)

democratic, law respecting – persecutory, totalitarian (political choice)

Presentation by Boldizsár NagySlide17

Reciprocity (utilitarian)

Today’s refugee may become tomorrow’s asylum provider and vice versa .

This is a utilitarian, rational choice approach.

Europe, last 70 years:

Spanish, French, Germans, Baltic people, Italians, Polish, Greek, Hungarians, Czechs and Slovaks, Romanians, Russians, Moldavians, Armenians, Azerbaijans, Georgians, Croats, Bosnians, Serbs, Albanians, (and other nationalities) had to flee

Presentation by Boldizsár NagySlide18

Political calculation (utilitarian, political choice)

Granting protection in order to achieve a political goal

- conflict prevention / domestic political pressure

- window dressing in order to gain accession to a desirable political community (Council of Europe, EU, etc.)

Presentation by Boldizsár Nagy

Historic

responsibility

If

persons

were

persecuted

by

a

given

state

or

because

of

the

acts

of

a

given

state

,

then

the

state

who

is

responsible

for

the

persecution

ought

to

offer

protection

(

Germany

before

and

after

WWII; US,

Australia

- South

Vietnamese

) Slide19

Three possible meanings

-

(Recognised) refugee

- Within the country

- Asylum seeker + refugee

- At the border or within the territory

Anyone

Anywhere

Against persecution

On five grounds

Against torture, inhuman or degrading treatment or punishment

On any ground

Non-refoulelment – as a customary law principle applicable without explicit or implicit consentSlide20

Exclusion of refugees

In order to argue in favour of limiting the arrivals/excluding refugees the actor must:

be consequently egoist

(welfare chauvinist

)

have no historic memory

blindly trust stability

be a realist

(willing to violate law if it is in the perceived national interest and no sanctions threaten or interests outweigh harm caused by sanctions)

Presentation by Boldizsár NagySlide21

Logical, but

Is there a room to ignore the above arguments with the

„yes, they are logical, but….” formula?

NO!

Presentation by Boldizsár NagySlide22

THE FATE OF THE EUROPEAN TRADITION IN ASYLUM LAW

CIVILIZE? BRUTALIZE?Slide23

Harmonization – key concepts and the impact of the acquis

Civilize?

Extended protection categories (subsidiary, temporary)

Gender and culture sensitive procedural minimum standards

Substantive requirements and standards on the reception of asylum seekers

Considerable support by through the European Refugee Fund and EASO (from 2011)

Solidarity with groups

having

special

needs

– especially in European context

Orderly resettlement schemes startingRelocation within Europe –genuine solidarity?

Brutalize?A generally restrictive, exclusionist approach, based on the presumption of non-genuine claims

Restrictive interpretation of the definitions pushing to categories with less rights

Heavily criticized „minimum standards” of procedure

Non-access, non-entry techniques (visas, carrier sanctions, interception, border surveillance, detention)

Efforts to shift responsibility for status determination and care (safe third country rules, readmisson agreements, plans for processing in the region of origin)

Presentation by Boldizsár NagySlide24

EU membership – the impact of the institutions

Civilize?

Commission, Council, Parliament: exposure to the international, forging professional allies, ammunition to fight domestic retrogrades

Court of Justice of the European Union control

Increased technical cooperation – improved access to COI info, trend-analysis, etc

Brutalize?

Intolerable inhuman treatment of asylum seekers, unmanagable burden on states at the external border of the EU (The Dublin regime and the lessons from

M.S.S v. Belgium and Greece

)

Routine, remote from field, peer pressure for restrictions, inadequate preparation

Guaranteed free hand in matters of national security

The vision of the security continuum – threats to data protection and privacy

Presentation by Boldizsár NagySlide25

The Member States

French-Italian row over Tunisians given temporary residence permit by Italy

calls to revise the Schengen system in order to restore border controls

Hermes operation brought forward from June „with a view to detecting and preventing illegitimate border crossings to the Pelagic Islands, Sicily and the Italian mainland”

EU and UNHCR

Cecilia Malmström, the EU's commissioner for home affairs, „The current crisis has confirmed the need for increased solidarity at EU level and a better sharing of the responsibilities”

„..we must also show continued support towards North Africa, to the people there in need of international protection.”

Pilot project for relocation from Malta extended

UNHCR did not call upon the EU MS to apply the temporary protection directive but expects

resettlement from the region and

respect for the obligations to rescue at see and access to protection

Reaction to the 2011 crisis in the MediterraneumSlide26

„

Europe needs to strengthen the existing rules

, and not to undermine them. We need to address this challenging and evolving situation through

long-term measures

based on the values of the

respect for law

and the respect of international conventions and, not through a short-term approach limited to border control. We need

leadership that can stand up against populist and simplistic solutions. We need

clarity, responsibility and solidarity

. We need more Europe, not less.”

Indeed!

Malmström’s message 2011Slide27

Thanks!

Boldizsár

Nagy

Eötvös

Loránd

university

and

Central European University

Budapest

nagyboldi@ajk.elte.hu

www.nagyboldizsar.hu