The Shadow of Syria: Why To Protect Refugees?

1. The Shadow of Syria: Why To Protect Refugees? BoldizsárNagy Legal Research Network Summer School 2012 17 September 2012 Budapest, ELTE, Dean’sCouncilRoom

2. Syria a torturing regime Source: HRW: Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground Prisons since March 2011, July 2012 availableathttp://www.hrw.org/sites/default/files/reports/syria0712webwcover_0.pdfvisited 13 September 2012

3. „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 2012http://www.unhcr.org/5051ef1c9.html Za'atri refugee camp in Mafraq, Jordan http://unhcr.org/v-50129c266

4. Nothing new….Guardian, reporting on 8 May 2011 • 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." Source_ http://www.guardian.co.uk/world/2011/may/08/nato-ship-libyan-migrants, visited 9 May 2011

5. 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.pdfvisited 13 September 2012

6. Recent statistics about asylum applications in the EU

7. 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?

8. Two alternative argumentative routes to overcome borders as barriers

9. The migration without borders (open borders) scenarioThinking 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

10. The law as it stands 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 FundamentalRights, 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 regimes UK-Ireland: common travel area ECOWAS 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 membersto move and reside freely within the EU territory, Art 27

11. 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."

12. 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

13. 10POSSIBLEARGUMENTS SUPPORTING THE VIEW THAT REFUGEES ARE (SHOULD BE) ENTITLED TO PROTECTION EVEN IN TIMES OF IMMIGRATION CONTROL

14. Identity 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 groupinvolvingboth a felt solidarity or oneness with fellow group members and a felt differencefrom or even antipathy to specified outsiders.” (p. 20.)

15. 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)

16. Construction of the self (identity)Difference-based • indigenous – foreigner (hospitality) • rich – poor (altruism, solidarity, moral command) • democratic, law respecting – persecutory, totalitarian (political choice)

17. 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

18. 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.) Historicresponsibility • Ifpersonswerepersecutedby a givenstateorbecause of theactsof a givenstate, thenthestatewho is responsibleforthepersecutionoughttoofferprotection(Germanybefore and after WWII; US, Australia - South Vietnamese)

19. Non-refoulelment – as a customary law principle applicable without explicit or implicit consent Three possible meanings - Asylum seeker + refugee - At the border or within the territory - (Recognised) refugee - Within the country • Anyone • Anywhere Against torture, inhuman or degrading treatment or punishment On any ground Against persecution On five grounds

20. 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)

21. Logical, but Is there a room to ignore the above arguments with the „yes, they are logical, but….” formula? • NO!

22. THE FATE OF THE EUROPEAN TRADITION IN ASYLUM LAW CIVILIZE? BRUTALIZE?

23. 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 havingspecialneeds– especially in European context Orderly resettlement schemes starting Relocation 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) Harmonization – key concepts and the impact of the acquis

24. 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 EU membership – the impact of the institutions

25. Reaction to the 2011 crisis in the Mediterraneum 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 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”

26. Malmström’s message 2011 „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!

27. Thanks! Boldizsár Nagy EötvösLoránd university and Central European University Budapest nagyboldi@ajk.elte.hu www.nagyboldizsar.hu