Why is it so difficult to secure meaningful agreements to share equitably the responsibility for refugees between states?

Introduction

With the rise of refugee movements around the world, the question of how and who should take responsibility of those in need of asylum rises. Moreover, why is that, during moments of crisis there is failure to provide protection to refugees? This essay will try to explain why states fail to cooperate and reach an agreement on equitable responsibility towards refugees. Firstly, existing legal documents on refugee processing and rights will be considered. Then, this essay will try to point out the reasons behind the lack of success of those existing documents. Reasons of economic, political and social nature will be highlighted.

It is important to pay attention when defining the word “refugee”. Its meaning can vary according to the field and context it is used in. When looking at its legal definition, it can be summarised as a person who has left their country of citizenship as a result of a justifiable fear of persecution (Abdelaaty, 2012). If we approach the word from a broader perspective, we can identify refugees as people fleeing their country of nationality as a result of multiple life-threatening reasons such as authoritarian regimes, civil war, conflicts, human rights abuses, development projects and natural disasters (Abdelaaty, 2012).

Refugees flee their countries in the look for protection and security elsewhere. This has initiated many debates on who should grant that protection and how should they provide it. These debates have not started recently as they can be dated back to the beginning of 20th century with the rise of the Great wars. However, in recent times, this debate has become more frequent due to the multiple conflicts taking place in the Middle East and North Africa, the so-called Middle East and North Africa region (MENA) (Martin et al., 2018).

With the increase of refugee waves and issues arising with it, countries have taken on a new approach in the aim to manage the refugee movements and improve protection and security delivery (Phuong, 2005). However, there are many issues ascending with these negotiations as there are uncertainties and perhaps lack of information on what duties each state needs to fulfil towards refugees. There are many further questions which have remained unanswered, such as the extent of responsibility a state has towards asylum seekers. There have been numerous declarations, regulations and conventions which have tried to set norms and laws on international level aiming to define state’s responsibilities towards refugees (Phuong, 2005). Nevertheless, there are many limitations and gaps in those documents which leave the international world in ambiguity and instability.

Existing Documents

One very important gap which causes complications is the actual existence of a right to asylum of refugees and the lack of duty of states to grant such rights (Phuong, 2005). As the 1948 Universal Declaration of Human Rights states all refugees have the right to seek and enjoy protection and asylum from prosecution in other states (Phuong, 2005). However, legally there are no documents which enforce this. The major reason why there is no mention of such principles is the general unwillingness of states to commit to such responsibility through legal obligations. During the negotiations of the convention states strictly opposed the inclusion of any reference to asylum and admission (Phuong, 2005).

Granting territorial asylum can hold many more complications in which states do not wish to commit to. In many other efforts to launch the right of territorial asylum, as in the United Nations Conference on Territorial Asylum in Geneva in 1977, have failed due to states’ opposition (Phuong, 2005). Since then, no other attempt has been put in trial to develop a right of territorial asylum (Gibney, 2004).

There have been other issues which make the share of responsibility not clear and cause further implications. The Dublin regulation, has tried to address the apparatuses which determines which states can assess refugee requests of international protection (Immirati, 2015), by not taking personal preferences of the asylum seekers into account. It also suggests that refugees can apply only within the EU and the decision taken is valid and recognised by all member states. Thirdly, it identifies that refugees can be relocated to the assigned states (Garcés-Mascareñas, 2015). However, the Dublin regulation has faced multiple criticisms. Firstly, it is seen as unfair as responsibility is uneven among states. Secondly, it is assumed to be inefficient as applicants continue to apply for asylum in countries different to the ones, they have arrived in. Thirdly, it puts at risk refugee’s rights as it does not consider their preferences which could result from existing family ties in the preferred country of application (Garcés-Mascareñas, 2015).

One of the main documents that have been guiding states since the mid-20th century is the 1951 Refugee Convention. It was first established under the United Nations after the First World War when the world witnessed consecutive refugee waves. The convention was further developed after the Second World War and aimed to provide solutions to massively increased refugee movements around the globe (UNHCR, 1951). As much as the convention was a great success it failed to cover main points which limit the correct processing of refugee movements. For instance, the convention fails to secure the right of asylum of refugees, as mentioned earlier, because it does not reference such right and duty (UNCHR, 1951).

However, it contains an important principle in article 33 which provides that no refugee can be returned from boarders or territory as they risk prosecution (United, 1977). In case state rejects refugees, it is considered refoulement, which goes against the convention. Despite, this article being considered as customary international law, there are ongoing debates regarding it. States agree that the law includes refugees on the territory, but many disagree that it refers to refugees at the frontiers. In 1993, the US Supreme Court declared that the article refers only to refugees within the territory (Phuong, 2005).

The interpretation of the article plays significant role of the state’s adoption of principles. If the broader interpretation is taken into account refugees at the boarders must be granted at least temporary asylum in order to assess whether those seeking asylum are genuinely at risk and need protection (Phuong, 2005). However, states are reluctant to taking such responsibilities and have been transferring applications to other “safe third countries”, which, in fact, does not violate the 1951 Refugee Convention.

There are many gaps in the international law for refugees as seen in 1951 Refugee Convention. Moreover, some of the existing principles are down to interpretation which causes further complications. States in deed have a duty of non-refoulment, but they do not have a duty to grant asylum (Phuong, 2005), which is one main reason why responsibility-sharing has been unequal.

Reasons Behind States’ Reluctance to Commitment

There are quite a few other reasons why states fail to adopt meaningful agreements. As already mentioned, states are reluctant to admit to a binding duty of asylum granting. The uncertainty that lies behind the admission of refugees is enhanced in the case of mass influx. The sudden and big interference of foreigners into one state can bring a lot of instability and civil unrest (Piven & Cloward, 2012). States try to put their own citizens’ security as their main concern. This can be linked to the principle of sovereignty which is inherent and unalienable to states. This is the basis of every nation-state as well as international bodies. It is down to every state’s discretion to decide who goes in and out of their territory. On the contrary, refugees and asylum seekers who pass the boarders of a given state without legal documents interfere with one’s sovereignty. By complying with responsibility-sharing policies state are in a way forced to give some of their sovereignty away (Martin et al., 2018).

Specifically, to the case of the EU, with the Schengen zone, the principle of sovereignty is further endangered. Due to the lack of physical boarders, individuals without legal identification documents or visa evoke a threat as they cannot be tracked and can move around countries’ territories. This can link to another big concern of states – terrorism. There have been multiple wreaking havoc cases of terrorist nature. Despite most terroristic attacks are carried out by European nationals, there have been some asylum seekers involved in the attacks too. Besides, most Europeans believe that the frequency of terroristic attacks is closely linked to the acceptance of refugees in the EU (Europe, 2018). Nevertheless, many have come to address the dangers that refugees face such as discrimination attitudes, racism among other dangers which put refugee at risk (Esses et al., 2017). We can take France for example, which is the country with third largest refugee applications and at the same time has suffered some of the deadliest terroristic attacks in Europe. In November 2015, two Iraqi citizens and two European citizens with Moroccan and Algerian origin attacked a concert hall, stadium and restaurants and killed 130 people and injured hundreds more (Europe, 2018). As much as we need to acknowledge that two of the attackers were European nationals, we cannot ignore the origin of the rest of the attackers. There is the notion of insecurity, fear and prejudice rooted in European thinking, which might take a long time, if at all, to disappear.

Another reason which increases states’ disagreements is of economic nature. Refugees bring many costs as they require basic provisions such as food, water, shelter. Moreover, expenses with application assessments, registration of people, resettlements etc. are high. Many countries in the EU have gone through or are currently going through economic instability. Greece, for instance, has a history of debt crisis and economic sustainability is an important aspect of their policy (Poddar, 2016). Geographically, Greece is located in South-East Europe which makes it one of the main access points to Europe for refugees from the MENA region. The refugee crisis only deepens Greece’s economic crisis, despite the economic aid it has received from the IMF (Poddar, 2016).

Another important issue are the cultural differences. Refugees tend to come from states that differ in religion, language, education etc. Many refugees find it hard to adapt to European culture and fail to integrate by not securing work places, achieving education or improving social ties with local citizens. An example can be Germany who took the most refugees from all members of the EU. In 2016 only 9% of the refugees who arrived in 2015 were employed (Trines, 2017). Moreover, Germany has had many more sophisticated cultural issues between Germans and refugees. There have been multiple reports on sexual harassments on women by dark-skinned men. A famous example took place in 2015 in Cologne when hundreds of women were sexually harassed by mainly North-African young men (Spiegel, 2018).

Despite all the complications stated above, there are benefits of granting asylum and integrating refugees which states tend to overlook. The benefits are not immediately reaped as in the beginning refugees need assistance and support. However, later on, when they have a settled status, they can contribute with their skills and knowledge (Martin et al., 2018). When refugees have the opportunity to work and feel valued, tensions and possible conflicts between locals and refugees can significantly decline.

Other reasons for incorporations and failure of meaningful agreements can be burden-shifting. Inevitably, the initial responsibility and duty to provide protection to asylum seekers lies on state located in the same region as the state of conflicts. Since they are the nearest and first stop of the refugees, those states feel the most pressure. In such situations, richer states can use their financial stability to buy their security off. They may choose to economically support the countries of first asylum in order to prevent the physical transfer of refugees. In fact, this theory is supported by the proposal made by Hathaway and Neve who suggest that indeed the responsibility to deliver physical safety to refugees should fall on the states of first asylum. Furthermore, they suggest that the financial responsibility should be divided between more economically developed countries (Phuong, 2005). However, this causes unevenness and unfairness as not all states of first asylum receive great support and heavily depend on their own economies and mechanisms. Moreover, resettlement does not take place in significant numbers, which makes the physical burden of refugees hard to handle. For example, in Lebanon every fifth person on their territory is a refugee. Turkey is the country with the highest number of refugees averaging around 2.5 million intakes (Thielemann, 2018). Both countries have not been supported financially massively and are facing a lot of economic, cultural and political issues.

Not only in cases of countries of first asylum, but in general, countries with superior financial and political power can choose to fund poorer and weaker countries which can host the refugees away from their territories (Martin et al., 2018). This can be called burden-shifting instead of responsibility-sharing. In a similar notion, smaller states can also decide to free ride and not take much responsibility.

From a different perspective, other complications can explain why states fail to secure equitable and meaningful agreements. Despite proposals and documents such as the Dublin regulation, refugees’ preferences are taken into account and play a role in their resettlement and overall asylum processing. One of the reasons states share uneven numbers of applications and refugees are the pull factors they provide. They can be divided into structural and policy-related factors. Refugees are more likely to choose a state with more favourable pull factors. Structural factors refer to existing migrant networks, geographic location, historic or language ties, family ties etc. (Thielemann, 2018). Usually, these factors are of massive influence on the decision-making of refugees. Policy-related factors refer to the specific policies each country has. Some may have adopted a more flexible immigration policy (Thielemann, 2018), which processes asylum applications in a quicker and more efficient way. As a result of these factors, Germany, for example, is the most preferred country in Europe by asylum seekers. It has received more than one third of the total asylum applications by Syrians in 2015 (Thielemann, 2018).

In the recent past, some states have suggested that, host state provide protection on behalf of the global community which state that refugee hosting in the state is an action of global corporation in which other countries ought to be responsible as well. For instance, Zambia in 2007 before the general assembly, stated that internally displaced persons and refugees were the international community’s responsibility and states of asylum were carrying the burden on themselves (Dowd & McAdam, 2017). Similarly, Jordan in (2015) maintained that, the international community must share refugee burden with them since they were performing a humanitarian responsibility on behalf of the whole humankind. To some extent, the UNHCR appears to support this point of view by explaining that international refugee law’s compliance represents a form of responsibility sharing in which countries honour their commitment to one another as per the 1951 convention as well as other refugee law instruments (Sinclair, 2004). Another way to look at the lack of agreements is the different solidarity approaches each country takes. A country might adopt a policy of admission of big number of refugees. Germany is an example of such country. In the specific case of the EU, the unequal refugee burden took place after Germany opened its boarders and voluntarily accepted higher number of refugees than any other European country (Thielemann, 2018).

Conclusion

The united nation states that refugees are the responsibility of the international community and that proximity does not define responsibility. Thus does not mean that, the host country does not have responsibility and this means that in order to answer why it is so difficult to secure meaningful agreements to share equitably the responsibility for refugees between states we had to look at different perspectives. Firstly, we saw that there are many declarations, regulations and legal documents, which set the base for international refugee laws. However, despite targeting issues concerning protection of human rights and refugee’s right to protection, it fails to obligate states into granting the needed asylum in order to promote security. In the most significant document on refugee’s rights, the 1951 Refugee Convention, we can still see the lack of distinct identification of corresponding responsibilities of states towards refugees (Phuong, 2005). It does mention the right of duty of non-refoulement, and duty to grant asylum on refugees on the territory. However, it does not go into any further details such as which state should protect which refugee under which circumstances and for how long (Phuong, 2005). In other words, there is both lack of international refugee regimes to provide security and lack of allocation of responsibilities among countries (Phuong, 2005).

We also looked at the reasons behind the unwillingness of states to commit to stronger international law which would potentially force them into following quotas, duties and responsibilities. We looked at security reasons such as sovereignty and potential instability in case of refugee influx, which could cause further issues. This linked us to previous examples of terrorist attacks and the biased opinion of Europeans on the link between terrorists and refugees. Economic instability and cultural differences such as language, religion and social understandings, are other aspects which contributed to the difficulties of the adoption of common agreements. Free-riding and burden-shifting were also associated issues as rich states tend to escape from responsibility by using their economic supremacy. It was important to include refugee’s preferences and pull-factors states may have. Finally, we looked at situations in which states decide to take extra burden on their shoulders with the example of Germany.

Overall, the international refugee system suffers from the unwillingness of state to engage with risk and agree to laws which they would need to obey. This is hard to do as each case is unique and may require different strategies to those stated in a potential binding document. However, it is vital that the international community continue to work towards achieving somewhat agreement and sets goals and solutions to the growing refugee problem.

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