Analysis
By Abu Bakarr Sesay, Jilin University, Changchun city, China.
My main argument in this presentation stems from the hypothesis: “The concept of State Sovereignty is today the biggest Challenge in Refugee protection in the world”.
I will try to examine how the concept of sovereignty has affected the international refugee protection system. To do so, I closely examine the legal documents that provide the normative and procedural framework of the protection system (such as the 1951 Convention Relating to the Status of Refugees, various regional agreements, as well as certain human rights documents) and discuss the legal, political, and moral obligations that these documents instill upon the member states of the protection system.
In the contemporary international state system the problems of border control and transboundary flows of refugees are ever relevant to states. Refugee-creating forces such as interstate warfare, ethnic cleansing, genocide and famine continue to occur with regularity. Thus, states that have a tradition of being immigrant nations, such as Canada, the United States and Australia, are faced with the questions of how committed they are to the international system of refugee protection, and whether or not they are willing to open their borders to allow in a greater influx of foreign nationals who seek protection.
The past two decades have witnessed a huge climb in the number of official refugees from fourteen million in 1997 to 15.2 million refugees according to UNHCR 2008 Global Trend report. This translates into making states, especially those with a history of immigration, face the question of whether or not they will widen their immigration and refugee policies to allow a greater influx of both people looking to better themselves economically (so-called economic immigrants) and people who are looking for protection from the state because their home government have failed to provide that protection (refugees and asylum seekers).
All states, especially liberal democratic states that have a history of acting with humanitarian concerns in mind, are in a difficult position in which they have to balance the traditional political concern for state sovereignty with the humanitarian concern for helping those in need of protection from persecution.
The refugee system constitutes an international regime and members of this human rights protection regime (i.e. signatory states to the 1951 Convention and 1967 Protocol, regional agreements, and those states that have enshrined the Convention into their domestic refugee/asylum policies) thus have their actions restricted considerably by the very fact that they are members of the regime. They are no longer allowed the full freedom of action and decision-making afforded to them under the doctrine of sovereignty.
As at present, there are 144 States Parties to the 1951 Convention on the status of Refugees and the 1967 Protocol, but today we are seeing nations who are signatories to these documents are turning their backs against these very important documents under the guise of state sovereignty.
My country, Sierra Leone, appended its signature to these documents on the 22 May 1981, and we believe and respect the principles of these documents, this is why my country has served as host to thousands if not millions of refugees from neighbouring countries.
Before going further into the core of my presentation, I first want to give a clear definition of who is a “Refugee’. According to Article 1"(2) of the 1951 Convention Relating to the Status of Refugees a ‘refugee’ as any person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his formal habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
It was as a result of this very important human rights issue that in 1951 the Office of UNHCR was established as the principal UN agency concerned with refugees (first as a sub organization to the General Assembly, and later it had the mandate of a specialized agency). The General Assembly established UNHCR to provide ‘international protection’ and to seek ‘permanent solutions for the problem of refugees.’
SOVEREIGNTY
The doctrine of national sovereignty can be defined as a principle “… which reserves to each sovereign state the exclusive right to take any action it thinks fit, provided only that the action does not interfere with the rights of other states, and is not prohibited by international law on that or any other ground.” Under this definition every sovereign state is free in international law to do what it wants with its own nationals and territory, as well as to enter into legal relationships with other sovereign states.
The current notion of state sovereignty was laid down in the Treaty of Westphalia in 1648, which, in relation to states, codified the basic principles of territorial integrity, border inviolability, and supremacy of the state. Thus, whatever happens within a state’s boundaries is under the jurisdiction of that state’s government. Interference in the domestic affairs of a state is considered unwarranted and in many cases illegal.
Now with such enormous right given to state to determine who should enter their territorial space is one major fact that is serving as a hindrance today to the protection of refugees who are seeking for refuge from persecution or war. States are now taking different restrictive measures just to ensure that refugees don’t create an influx into their boundaries. These restrictive measures through the excessive power of national sovereignty exercised by states have directly affected the ability of asylum-seekers and refugee claimants to either enter the safe country in the first place, or to claim asylum once they have crossed the borders. In this regard, I consider, “States pay lip service to the importance of honouring the right to seek asylum, but in practice devote significant resources to keep refugees away from their borders.”
Border Control
The developed world has used the concept of sovereignty as a defense mechanism against the influx of refugee and asylum claimants. It is a well-known fact that one of the foundations of immigration policy, including refugee policy, is the concept of state sovereignty. Indeed, immigration policy is “considered to be sacrosanct to the maintenance of state sovereignty.” State sovereignty is used by states to support their belief that the act of granting asylum is at the discretion of the state, instead of as a matter of an individual’s right to asylum.
The concept of sovereignty is in most cases used to back up restrictive viewpoints on immigration and refugee policy. Essentially, it is used by virtually all states as an excuse to not only restricts the flow of ‘normal’ migrants, but also desperate people in search of safety and refuge. There are varying degrees of strictness in terms of the application of the concept of sovereignty in reality (i.e. in terms of refugee policy).
Domestic Policies
The international system of refugee protection also contains member states that attempt to shirk their responsibilities and duties toward the regime and to refugees themselves. This is done for a variety of reasons, such as fear of refugee ‘overload’, strain on national resources, xenophobia, racism, or fear of a ‘takeover’ of refugees that do not ‘mix’ with the nationals in terms of ethnic background, race, religion, or culture. It is for these reasons that countries develop ways to prevent asylum and refuge claims from being made at their borders, or to allow or force claims to be passed on to other states
One developed country that is shirking its responsibilities is the United States’ policy towards Haitian refugees. Between 1981 and 1991 over 22,000 Haitians were interdicted at sea, and out of those people only 28 were allowed to apply for asylum in the US. UNHCR, along with other humanitarian organizations and advocacy groups have argued that the US policy of interdiction and return of Haitian asylum seekers could lead to refoulement, which is prohibited under Article 33 of the 1951 Convention
Pre-entry Measures
Pre-entry measures are the first opportunity for states partner to the international refugee protection regime to shirk their responsibility of protection. Amongst these available measures, visa requirements for nationals of refugee-producing states have probably the most negative effect on asylum claimants and people in search of refuge outside their country of origin. Seeking asylum in a safe country does not require a claimant to carry a visa, Article 31 of the 1951 Convention states that claimants shall not be restricted from movement or receive penalties because of entering illegally (i.e. without the proper papers and identification), as long as “their life or freedom was threatened in the sense of Article 1… provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Therefore the imposition of visa requirements on refugee claimants and asylum seekers is in blatant contradiction with the meaning and purpose of visas.
Many countries have instilled airport transit visas (ATVs) in an effort to stop the entry of refugee claimants who have entered the country via another country that did not require the person to carry a visa.
Another measure used is Carrier sanctions. These are fines levied on airlines and shipping companies on a per capita basis that allow the arrival of passengers who do not carry the necessary papers. They require pre-boarding documentation checks in both countries of origin and transit and people who lack the required documentation are prevented from disembarking and are sent back home. In many countries these people are thereafter detained in centers in international airports and in some cases denied the right of appeal. States also, in order to prevent, disrupt, or halt the movement of refugees and asylum seekers across international borders applied what is called interception. Essentially, interception is meant to create barriers to protection for refugees and asylum seekers.
Negative Effects of these Restrictive Measures on refugee protection
The international system of refugee protection is changing; countries that have a history of hosting large numbers of refugees are gradually turning away from their commitment to the regime. This is due in part to the failure of the international community to share the responsibility of protecting refugees. All of the measures to prevent access of refugees to safe countries described above represent a trend of states towards ‘en bloc denials of accesses. The moral and legal duties of states that are laid out by the international regime of refugee protection are thus minimized as much as possible, as states use sovereignty as an excuse to commit themselves to minimum levels of obligation to nationals of refugee-producing states.
The weakening of the refugee protection regime has a vast array of potential effects for its levels of protection. UNHCR is losing effectiveness as states step away from their commitment. Even though UNHCR’s activities are supposed to be non-political in nature, it is “a highly political actor and is clearly shaped by the interests of major governments… UNHCR is often at the mercy of its donor and host governments.” This means that UNHCR will only be effective to the degree that the most important states in the regime (i.e. the states that make the largest financial contributions and accept the largest amounts of refugees) remain committed to it, both financially and ideologically.
On the domestic level, numerous governments have at least to some degree, stepped away from their commitment to the protection of refugees and have moved in the direction of restricting the flow of refugees into their countries. Many of these measures are carried out in an effort to control illegal immigration and ‘asylum-shopping’, however, multitudes of bone fida refugees are being negatively affected and will continue to be affected in the future. If the international refugee protection regime continues to weaken and lose coherence, the problem of refugee protection, which affects millions of people across the world each year, will only worsen. The very aim of the regime, to provide protection to help save millions of lives each year by providing safe places where displaced persons can turn to seek protection will not be reached. In sum, the “treatment of asylum-seekers everywhere has been marked by exclusion and expulsion and there exists a worldwide asylum crisis.
What this means for the regime is that its coherence is decreasing; the aims of the regime and the state behaviour it prescribes increasingly are not being reflected by actual state behaviour. The interests of the member states are changing as their identities change: It seems likely that states may incrementally abandon their responsibilities of protection. This is especially likely to occur if individual states observe that many other states are doing the same, since state’s identities are reinforced by what others are doing. Nevertheless, if regime weakening continues to occur, the refugee problem will only intensify and involve thousands more people each year, in turn affecting not only refugees themselves, but states and the protection regime as a whole. In the end, the regime’s work is “frequently characterized by tension between the national and international arms of protection, between sovereignty and international responsibility.
In a situation described as “the system of international refugee protection in crisis” by Gorlick, states use the aforementioned measures in order to place restrictions on the international protection regime. This, in turn, has meant that legal protection of refugees is quickly losing ground, as legislative and inter-state arrangements change and there takes place “a pull back from the legal foundation on which effective protection rests.”
I will therefore, end with this quotation from the Universal Declaration of Human Rights: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
Editor’s note: This paper was presented by Abu Bakarr (photo, centre) at a seminar on Contemporary International Relations Issues organized and sponsored by The Institute of International Studies, Jilin University with some students from the West Point Cadets Institute in the United States. Abu is studying for a Masters degree in International Relations.
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