Hitting the Pause Button on Refugees and Asylees

By Dan Cadman, April 21, 2016

I was watching BBC World News this past Friday (April 15) and the newscaster mentioned that 6,000 illegal arrivals had reached Italian territory in the span of three days. This despite the fact that an accord between the European Union (EU) and Turkey kicked into effect at the end of March that was to end the crisis through return of "unregistered" migrants. A few hundred have already been sent back to Turkey under the arrangement, which is highly favorable to Turkey (more about that in a minute).

At this time of year, the Mediterranean is still susceptible to occasional cold snaps, rough weather, and even sometimes massive North African dust clouds. At the rate of 2,000 per day, and summer not yet upon us, it would appear that the accord is not dampening the fervor of the migrants, who hail from Syria, Iraq, Afghanistan, Bangladesh, Pakistan, and both Arab and sub-Saharan Africa, among other places.

An EU-Turkish accord that was successful at abating the flows landward, and in the Aegean Sea where it meets the eastern Mediterranean, would have allowed the EU's border agency, Frontex, to shift its maritime resources into the central Mediterranean in order to do a better job of interdicting the flows hitting Italy's territorial Pelagie Islands, such as Lampedusa, from Arab North Africa. This hasn't happened.

The accord between Turkey and the EU is, to my way of thinking, lopsided. Turkey receives a large infusion of euros as "aid" for its support of refugee camps; its citizens become the happy beneficiaries of visa-free travel throughout most of the EU (not Britain), even though it is neither an EU member nor part of the Schengen zone, and, most curious, the returns arrangement is exceedingly strange: For each migrant sent back, the EU agrees to accept one. Where is the gain for EU member states in an arrangement such as that? The word "pusillanimous" comes to mind.

EU officials claim that it permits them to sort through and send back the "economic" refugees, but to a jaded eye, that claim wears thin and appears based more on nationality than individual facts. Syrians and Iraqis are being accepted; sub-Saharan Africans, Pakistanis, and Bangladeshis are being ejected. But what if a Pakistani were, for instance, one of the ill-treated minority Christians whose churches are often bombed or burned (sometimes with them still inside) by Muslim crowds angry at the unbelievers in the midst? What if a Bangladeshi were one of the outspoken secularists who has rejected Islam and become an apostate, which has routinely triggered mobs hacking such persons to death with machetes while police investigation of the crimes is lazy and indifferent?

Part of the problem appears to be that EU nations are afraid to simply say "no more" and refuse, at least for the moment, to accept any additional refugees, legitimate or economic, on public order and national security grounds, and thus appear to be playing a shell game of pick-and-choose even as they claim that they are only doing what is required of them under international refugee agreements.

But contrary to popular belief, there is ample reason within the United Nations (UN) Convention and Protocol Relating to the Status of Refugees (CPRSR) to accept that such a step is lawful for signatory nations should they deem it necessary on the grounds of public safety and national security.

These grounds would seem particularly relevant in light of the recent spate of terrorist attacks in France and Belgium, and subsequent multiple arrests arising from police raids in those countries, and elsewhere in Europe — not to mention the deeply disturbing New Year's Eve molestations of women by young Arabic males (via group groping, rape, and theft) in several European cities.

Supreme Court Justice Robert Jackson once sagely commented that the Constitution is not a suicide pact. The same is true of virtually every international agreement. The right to self-defense and preservation is a core principle of the UN charter.

The echoes of that key principle resonate throughout the CPRSR and its accompanying documents generally known as the Travaux Preparatoires (French for "preparatory work"), the equivalent of the legislative history that lays out the intent and understandings of the signatory members. (The phrase Travaux Preparatoires, as used here includes the "Commentaries", "Judicial Decisions", and other items contained within the UN document of that name.)

Although lengthy, the Travaux make particularly interesting reading in that they reflect a keen, almost prescient recognition on the part of member state representatives that national capacities can be overwhelmed at the expense of public order and national security. In discussing the Preamble, for instance, the French representative prophetically observed that, "France, like other countries in Western Europe, had afforded hospitality to hundreds of thousands of refugees without distinction of race, age, political opinion, health or profession, in the name of the most sacred principles of civilization and of the United Nations. The problem of protection arose because naturalization and repatriation could not provide a complete and immediate solution to the refugee problem." (Emphasis added.)

With regard to use of the phrase "public order", the Travaux contains these statements under "Commentary and Judicial Decisions": "The term 'public order' does not correspond to the meaning of that term in Anglo-Saxon law but rather to the term 'ordre public' in French law. Both threats to internal and external security of the country are meant, whether covered by the Criminal Code or not. ... Although this is not explicitly stated, refugees may be expected to behave in such a manner, for example, in their habits and dress, as not to create offence in the population of the country in which they find themselves."

A blog post is an inadequate place to delve into great detail on either the Convention or the Travaux, but let me give a few additional examples:

Article 1 defines the term "refugee", and specifically precludes persons who have "committed a crime against peace, a war crime, or a crime against humanity ... [or] a serious non-political crime ... [or] been guilty of acts contrary to the purposes and principles of the United Nations." (The Convention covers asylees as well as refugees; in fact, the words are sometimes used interchangeably. The difference is that a person seeking refugee status is outside of the country in which he seeks to shelter, whereas one seeking asylum is either right at the threshold, for instance at a port of entry, or has already entered the country. The bases by which an individual may be granted refuge or asylum are one and the same: race, religion, nationality, membership in a particular social group, or political opinion.)

Article 9 states, "Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person."

Article 32 asserts that "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order." (Emphasis added.) Note that Article 31 does not extend coverage to individuals outside of territorial boundaries. This latter fact is highly pertinent in that it provides grounds for member states to initiate extraterritorial and at-sea interdiction. This is, in fact, the basis for the wet-foot/dry-foot policy of the U.S. government with regard to Cubans, Haitians, and others interdicted in Caribbean waters, who are routinely returned to their countries of origin.

Article 33 provides that "No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where their life or freedom may be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion."

However, the Ad Hoc Committee responsible for drafting this article is noted in the Travaux as commenting "This Article does not imply that a refugee must in all cases be admitted to the country where he seeks entry."

Several representatives additionally expressed concerns over whether this article encompassed mass migration. For instance, the Travaux tell us, "The Netherlands representative recalled that at the first reading the Swiss representative had expressed the opinion that the word 'expulsion' related to a refugee already admitted into a country, whereas the word 'return' ('refoulement') related to a refugee already within the territory, but not yet resident there. According to that interpretation, Article 28 [in the draft Convention, which later became the basis for Article 33] would not have involved any obligation in the possible case of mass migration across frontiers or of attempted mass migration."

As the U.S. Supreme Court noted in Sale v. Haitian Centers Council, Inc., the idea that the provisions of Article 33 apply even in the face of a mass migration emergency was rejected by the representatives to the conference considering the International Convention. Justice Stevens, writing the majority opinion for the Court, favorably quoted the Travaux as follows:

Baron van BOETZELAER (Netherlands) recalled that at the first reading the Swiss representative had expressed the opinion that the word 'expulsion' related to a refugee already admitted into a country, whereas the word 'return'('refoulement') related to a refugee already within the territory but not yet resident there. According to that interpretation, article 28 would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations.

He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in article 33. The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory.

At the first reading the representatives of Belgium, the Federal Republic of Germany, Italy, the Netherlands and Sweden had supported the Swiss interpretation. From conversations he had since had with other representatives, he had gathered that the general consensus of opinion was in favour of the Swiss interpretation.

In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33.

There being no objection, the PRESIDENT ruled that the interpretation given by the Netherlands representative should be placed on record.

It seems clear that the treaty obligations of each Convention signatory state toward refugees are conditioned by risks to public safety and national security that are engendered by either dangerous individuals, or collectively in the case of mass migrations. But it's up to each signatory state to decide when its public safety and security are at risk.

Despite receiving more than a million illegal arrivals last year by land and sea, the EU generally has yet put its foot down to call a halt, even though a few individual states (mostly the poorer ones to the east, which are also the newest members of the EU) have bucked the trend by erecting fences and beefing up border guards to patrol the perimeters of their frontiers.

In the end, though, that may be a meaningless exercise as long as alternate routes are available to get the migrants where they wish to go: the EU member states with the most attractive social welfare benefits that are still receiving them (Germany being a prime example), after which they are free to travel wherever they wish, visa-free, in the Schengen zone.

As we watch the Europeans stumble through their response to the crisis, we Americans have little to feel smug about. Instead, we should be watching closely and learning from European mistakes, because our government also is feeling the pressure from migrant surges happening on our southern land border and, so far, is acting as ineffectually as the Europeans to stem the flow.