The Question of International Law During Europe’s Refugee Crisis

Since the beginning of the Syrian Civil War four years ago, over 400,000 Syrians have risked their lives traveling to Europe with the hope of receiving asylum.[1] The journey to a better future in Europe, however, has been arduous for many and is often a case of life or death. With news of migrants drowning in the Mediterranean, police brutality at borders, and arbitrary detentions, the actions of the European Union nations are being questioned as to both their humanity and the manner in which member nations disparate laws are enforced against migrants.

Image Courtesy of Mstyslav Chernov, © 2015, some rights reserved.
Image Courtesy of Mstyslav Chernov, © 2015, some rights reserved.

Europe prides itself on the creation of such bodies as the Council of Europe and the European Court of Human Rights that uphold justice and enforce the common laws of Europe as well as conventions of the United Nations. Yet the current refugee crisis demonstrates the glaring discrepancies within Europe regarding international law and the treatment of refugees. These discrepancies further call into question the efficacy of international law and multinational organisations in executing their policies. Furthermore, the past six months have demonstrated to the European community the importance of common practice and execution of international law, for it is only at the risk of human life that human rights and refugee rights are upheld by the states that have ratified these laws.

International refugee law is a relatively new system. The leading organisation regarding the protection of refugees, the Office of the United Nations High Commissioner for Refugees (UNHCR), was created after World War II to aid refugees in Europe. The Convention Relating to the Status of Refugees is the foundation of international refugee law.[2] The Convention defines the term refugee and sets minimum standards for the treatment of persons who qualify as such.[3] According to the convention, a refugee is someone who: (1) has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group, or political opinions; (2) is outside his/her country of origin; and, (3) is unable or unwilling to avail him/herself of the protection of that country or to return there, for fear of persecution.[4] The Convention then integrated the Protocol relating to the Status of Refugees in 1967 adding the principle of non-refoulement (no return), information on national legislation to ensure the application of the Convention, and exception from reciprocity.[5] A majority of European countries including Hungary and Macedonia have agreed to the International Covenant on Civil and Political Rights making them accountable for upholding the laws in the Convention.

European refugee law from the European Court of Human Rights and the Common European Asylum System further modifies international refugee law from the UN. The issue of granting asylum becomes more layered when looking at European law, for example “there is no right to asylum [under the European Court of Human Rights] such as that found in Article 18 of the EU Charter of Fundamental Rights.”[6] Individual states’ laws regarding refugees and asylum further complicates the matter. Although asylum policies are somewhat similar in Europe under the Common European Asylum System, there are still discrepancies between each European state that demonstrate many challenges for refugees trying to get to Europe for they are blocked in states like Hungary and Macedonia.

One of the biggest challenges refugees have to face is transport into Europe. Thousands of migrants have crossed the Mediterranean to arrive in Greece from Turkey. Since the summer hundreds of migrants have died from drowning after boats capsized in the Mediterranean. Yet travel by land can be just as dangerous as travel by sea. On August 27, 50 migrants were found dead in a parked truck on a motorway in Austria. The cause of death: suffocation.[7] The majority of travel for migrants is at the hands of smugglers, which is both dangerous and expensive. Traveling as a refugee in these conditions is particularly dangerous for women who face a threat of sexual violence while on their journey to Europe. In an interview with France24, Milad, a Syrian refugee currently living in “The Jungle”, a tent city near the French city of Calais, says she only leaves her tent twice a day. She and her uncle are traveling to London but take turns sleeping for fear that they would be attacked.[8] The fears and risks involved in travel for refugees could be elevated through modes of legal transportation, which would ensure that refugees would arrive safely.

Another challenge refugees face once on land is border control. Trying to pass through certain borders leads refugees to seek smugglers, which only increases the risks of unsafe travel previously described. The most notable example of strict border control is Hungary. A new border regime was enforced and a border fence was constructed on September 15. The Hungarian government then declared a state of emergency due to “mass immigration” on September 16.[9] The new laws regarding immigration in Hungary include making irregular entry a criminal offence allowing authorities to imprison people who cross the border for up to “eight years, deport them and bar their re-entry.”[10] The new regime also includes a law restricting access for asylum into Hungary for those who enter from Serbia and allows for quick returns of asylum seekers back to Serbia for it is deemed a “safe country” for asylum seekers.”[11] There have also been numerous reports of police abuse and violence against refugees trying to cross the border with UN High Commission for Human Rights, Zeid Ra’ad al Hussein commenting that the “force used by Hungarian authorities against migrants and asylum seekers had been disproportionate.”[12] Hungary’s treatment of refugees at its border as well as the enforcement of its new border regime presents a violation of Hungary’s obligations under the Refugee Convention and the European Union Charter of Human Rights.[13]

Often when refugees cross borders they can be detained in border control facilities. In a case study conducted by Human Rights Watch, Macedonia is a great offender of detainment. The study primarily focused on the detainment centre, Gazi Baba, which is infamous for police abuse, unsanitary conditions, overcrowding, and a lack of access to drinking water and food.[14] The report includes interviews of former detainees who faced abuse from guards including sexual violence directed at female detainees. Macedonia justified its detention of migrants as a reasonable response to properly establish the identities of the migrants and deter smuggling. But migrants were kept in the detention centre for months, denied access to lawyers, and were beaten when they asked about their documents.[15] This treatment of refugees violates “the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the Convention against Torture, all of which Macedonia has ratified, and all of which prohibit in absolute terms torture and cruel, inhuman and degrading treatment and punishment.”[16] With overwhelming evidence presenting abuses in detention centers in Macedonia, higher courts in Europe and the United Nations must investigate and hold those accountable who have committed these crimes.

With the number of refugees growing in Europe, the European Union leaders meeting on September 23, focused on possible solutions for the refugee crisis. Leaders agreed that there needs to be more aid to other countries such as Lebanon, Jordan, and Turkey who are dealing with the refugee crisis, as well as an aid package of 1 billion euro to the World Food Programme and other aid agencies.[17] However, instead of reaching an agreement regarding more access for refugees across borders the summit agreed to “tackle the dramatic situation at [their] external borders and strengthen controls at those borders.”[18]

The European Commission has also decided to create a list of “safe countries” for “rapid returns of asylum seekers originating from Western Balkan countries.”[19] Yet some of these “safe countries,” for example Serbia, have a similar pattern of police abuse and “difficulties accessing asylum procedures,” seen with the border patrols in European countries such as Hungary and Macedonia, only making the journey for refugees more difficult and unsafe.[20] Despite the creation of a list of “safe countries” there is not a list of “unsafe countries” such as Afghanistan and Syria that would expedite the asylum process for refugees coming from these countries. Nonetheless the progress seen at the summit was discredited for the European Commission presented “40 infringement proceedings for failure to abide by EU assylum laws with respect to procedures, qualifications for refugee status, and reception conditions.”[21] This now brings a current total of 75 infringement proceedings against 23 member states. Judith Sunderland, the associate Europe and Central Asia director at Human Rights Watch commented on the infringement proceedings stating that “it makes a mockery of the Common European Asylum System that 23 out of 28 EU countries are not doing right by asylum seekers.”[22] Unfortunately despite efforts of EU countries to boost aid for refugees there is overwhelming evidence that a majority of EU countries are breaching European asylum law.

Refugees face many challenges when traveling to Europe. The journey they take is a matter of life or death and instead of aiding these asylum seekers, who have already endured incredible hardship within their own countries, EU countries, specifically West Baltic countries, have made the trip more wearying and problematic than it already is. Refugees face abuse at border controls and even detainment. Solutions to all of these issues are established by law, yet they are not being executed. Countries must be held accountable for their infringements by the European Commission, for such accountability is the only way law will be enforced and asylum practices will aid those in need.

[1] https://data.unhcr.org/syrianrefugees/asylum.php

[2] http://www.unhcr.org/3d4aba564.html

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] http://fra.europa.eu/sites/default/files/fra_uploads/handbook-law-asylum-migration-borders-2nd-ed-1_en.pdf

[7] https://www.hrw.org/news/2015/08/27/dispatches-those-trying-reach-safety-europe-land-can-be-deadly-sea

[8] http://www.france24.com/en/20150911-51-percent-calais-women-refugees-migrants-europe

[9] https://www.hrw.org/news/2015/09/19/hungary-new-border-regime-threatens-asylum-seekers

[10] Ibid.

[11] Ibid.

[12] https://www.hrw.org/news/2015/09/19/hungary-new-border-regime-threatens-asylum-seekers

[13] Ibid.

[14] https://www.hrw.org/report/2015/09/21/though-we-are-not-human-beings/police-brutality-against-migrants-and-asylum

[15] Ibid.

[16] Ibid.

[17] http://www.consilium.europa.eu/en/press/press-releases/2015/09/23-statement-informal-meeting/

[18] Ibid.

[19] http://www.hrw.org/news/2015/09/24/eu-leaders-duck-responsibilities-refugees

[20] Ibid.

[21] http://www.hrw.org/news/2015/09/24/eu-leaders-duck-responsibilities-refugees

[22] Ibid.

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