This article is written by Vanya Verma pursuing B.B.A. LL.B (Hons.) from Alliance University, Bangalore. This article talks about the Syrian refugee crisis and what are their various rights under various international laws.
Table of Contents
Introduction
The states have the primary responsibility to protect human rights within its territories. But there can be situations where the government might be unwilling or unable to protect their own citizens. These circumstances make the individuals suffer grave violations of human rights, which compels them to leave their home countries in order to seek safety and basic necessities since their government is longer capable of doing the same. It is the duty of the international community to step in to ensure those basic human rights. This article talks about the Syrian refugees and the laws which protect them.
Who are Refugees?
Article 1(A)(2) of The 1951 Refugee Convention defines a refugee as “someone who has a well-founded fear of persecution for their gender, race, religion, or political beliefs, and must flee to another country”. Refugees are the people who are not able to return to their homes under fear of persecution, which forces them to move from their home country to another in order to seek refuge, aid, and safety. Fear of persecution may include asylum seekers as well.
Exceptions
The 1951 Convention puts certain restrictions on eligibility for refugee status. Article 1(D) of the Convention excludes the individuals who during the 1951 Convention were already receiving assistance or protection from some other UN organ or agency. This article is mainly applied to Koreans who receive aid from the United Nations Korean Reconstruction Agency (UNKRA) and to Palestinians who receive aid from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and continues to apply to latter. Though the Palestinians living in areas where the UNRWA operates are eligible for refugee status under the 1951 Convention.
Article 1F of The 1951 Refugee Convention includes a number of exclusion clauses:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
- He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
- He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
- He has been guilty of acts contrary to the purposes and principles of the United Nations;
- Individuals who have voluntarily availed the protection of their country of nationality or individuals who have received protection in a third country or habitual residence are also not considered refugees.
What is Syrian Refugee Crisis?
The civil war in Syria has its roots in the colonial context, the war in Iraq and ethnic tensions. The ongoing civil war can be traced back to Bashar al- Assad’s election in 2000 and the rise of ISIS (Polk, 2013). Though Assad was elected democratically, he denied the people of their rights. Pro democracy uprisings were seen in the year 2011 due to the persecution that were carried under the Assad’s regime, these uprisings turned into a violent civil war in Syria. By 2012, Syria was engulfed in a civil war with rebel groups all over Syria and Assad’s forces killed thousands of civilians by battling over villages, cities and countryside, along the way. He denied the basic necessities to the civilians. By the end of August, 2015 almost 250 thousand people had lost their lives from this Syrian civil war.
It was reported by the UN commission on Syria that both the rebel forces and the government have caused “civilian suffering- such as blocking access to food, water and health services through sieges- as a method of war”. The rebel forces included ISIS that had created an atmosphere of terror. They gave severe punishment to the people who refused to accept their rules or transgress. The punishment included a lot of public executions as well as amputations. They carried our mass killing of rival armed groups including members of security forces, beheaded hostages and religious minorities along with several westerners.
Outcome of this civil war
A chemical warfare in August, 2013 that was inflicted by Assad’s forces on their own people. Hundreds of civilians died when rockets that were filled with sarin, a nerve agent, were fired on suburbs that surrounded Damascus, Syria’s capital city. Although the responsibility for the chemical warfare was denied by Assad, it was not believed by the Western powers that the rebel forces had enough resources to obtain chemical weapons.
This civilian war had forced more than 4.5 million people to flee. Syrians then fled to neighbouring countries like Lebanon, Jordan, Turkey, and about 10% of them have made the dangerous journey to Europe as well. The journey above the Mediterranean to Europe is acknowledged to be the world’s most dangerous migration routes. The International Organization for Migration gave estimates that since the year 2000, 22,400 migrants and asylum seekers have died in an attempt to reach the European Union and most of them at sea. Though millions fled, still there are thousands of citizens remaining in Syria who continue to suffer. The UN reported, “about 70% of the population is without access to adequate drinking water, one in three people are unable to meet their basic food needs, and more than 2 million children are out of school, and four out of five people live in poverty”. On top of all this due to blockades by Assad’s forces, ISIS and rebels, the humanitarian agencies have not been able to enter into areas where people are in desperate need of life saving aid.
Actions by Receiving Countries
Europe was hostile towards the Syrian refugees despite their critical situation. Countries like Hungary and Turkey due to massive influx of refugees had to fence off and close their borders. The refugees who went to these countries for protection were further abused and suffered a lot. It was reported by the Human Rights Watch Report that in Hungary in order to control the refugees, the police harassed, beat and even threw tear gas at the refugees. In Hungary the refugees were not allowed to board buses and trains to Germany and Austria, this further hindered the freedom of refugees.
In Turkey, the refugees are detained by the authorities without access to the lawyers. Refugees were even forced to their countries by the Turkish authorities. The Turkish authorities had completely violated international laws of non-refoulement. The refugees there in Turkey are treated as a security threat or even as a terrorist in some places.
According to an Amnesty International (2015) study, “Refugees Endangered and Dying Due to EU Reliance on Fences and Gatekeepers”. The fences have been built by the countries to protect their borders and refugees have been blatantly denied access to asylum. John Dalhuisen, Director Amnesty International for Europe and Central Asia, stated “The expanding fences along Europe’s borders have only entrenched rights violations and exacerbating the challenges of managing refugee flows in a humane and orderly manner” (Amnesty International, 2015, para. 4).“Where there are fences, there are human rights abuses. Illegal push-backs of asylum-seekers have become an intrinsic feature of any EU external border located on major migration routes and no one is doing much to stop them” (Amnesty International, 2015, para. 16).
It is also noted in the report that the construction of gates and fences have not been able to stop the refugees from coming, instead the refugees have been forced to take more dangerous routes. Childrens are the most vulnerable group of refugees. Many children have drowned at sea, died of illness, starvation or hypothermia.
The civil war in Syria has created dire conditions for the refugees who had to leave their homes to demand from the states to fulfill their responsibility of protecting the refugees. This is however challenged by the protectionist that refugees are a threat to national security. Thus, a conflict between the protection of human rights and national security.
Syrian Refugee Crisis Continues to Grow
The continuous fight and instability in Syria has made the situation worse and it is still forcing the people to leave their homes and gain shelter in neighbouring countries. In March 2019, the number of registered refugees of Syria had reached a peak of nearly 5.7 million but has fallen slightly. More than 5.6 million are still there as registered refugees. Many refugees leave their homes with almost nothing, so for their basic needs they become dependent on humanitarian aid. It becomes difficult for adults to find work for livelihoods to support their families and children sometimes miss years of school, that makes it difficult for them to catch up. It’s altogether very difficult for a family to start all over again from the very beginning and if the receiving country also does not treat them fairly then their situation just becomes pathetic.
The widespread economic tension and unbearable security have resulted in the largest refugee crisis. Since the war began in Syria:
- The number of displaced people have been 13.1 million people out of which 5.6 million people are still seeking refuge in the neighboring countries.
- With 3.5 million people Turkey has the most Syrian refugees and the number is still growing.
- Jordan has more than 600,000 refugees and Lebanon has around 1 million refugees. In each country almost 80 percent of the refugee population is living below the poverty line
- A quarter of Lebanon’s total population is Represented by Syrian refugees that is the highest proportion of refugees than in any other country.
- Syrian refugees consist mainly of women, children and the elderly.
Burden Sharing
Burden sharing is one of the foundational principles of the international refugee regime. The United Nations High Commissioner for Refugees (UNHCR) refers to the burden sharing as a subset of international cooperation, in which the States take responsibilities of the refugees who would strictly fall under the other states protection.The preamble of the 1951 Convention consists of documented origin of burden-sharing. The Convention states that: The grant of asylum may place unduly heavy burden on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation.
It is specifically required by the preamble of Refugee Convention that there should be cooperation by the international community, they should share burdens with an aim to achieve a solution for refugees. The refugees should be integrated into the economic system of the countries of asylum and there they should be provided with their own needs and of their families. The burden-sharing specifically addresses the large refugee flows cases. The countries which receive the refugees that provide the first asylum are placed in a very difficult position and disproportionate burden.
The burden sharing triggers the jurisdiction of the state where there is physical presence of the refugees, the distribution of protection that is provided to the refugees of a State is generally unfair. Thus, burden-sharing, is the distribution of responsibilities among states in response to the flow of refugees. If the meaning of burden sharing is narrowed down it refers to a specific arrangement that is made for the physical distribution of refugees (example of burden sharing is resettlement).
The UNHCR elaborated that the measures of burden sharing can take various forms like extending from financial assistance to physical protection. Burden-sharing is essentially an approach towards obligation for refugees, that is undertaken by international solidarity and by sharing responsibilities. The concept entails that issues pertaining to refugees are a concern to the entire international community. The obligations and duties of the countries towards refugees does not end because of the prevalence of the notion known as burden-sharing, but it requires that where the refugees volume clearly outstrips the capacity of a receiving state to fulfill their obligations, there the international community should step in and stare the burden by offering asylum to the refugees.
The principle of burden sharing is regarded by many as an obligation that is legally binding on the states, though the extent of its binding power can be subjective.
The concept of burden-sharing is not a new invention, the concept of burden-sharing and solidarity has been present since the time of the inception of the international refugee regime. The entire international refugee system was set up on the common understanding that the refugees are an international responsibility.
With a little success, the continuous efforts have been made by UNHCR in the case of the Syrian refugee crisis in order to disseminate the norm of burden-sharing to various states.
International Laws
International law related to refugee law is derived There are two main sources of international law
- International Customary law
- International Treaty Law
International Customary Law
International Customary Law consists of rules of law that are derived from consistent conduct of States which act out of the belief that the law requires them to act that way.
International Customary law related to refugees comprises of-
- The Principle of Non-Refoulement
- The Universal Declaration of Human Rights
The Principle of Non-Refoulement
The meaning of Non-Refoulement is non-return; the foreign nationals cannot be returned by the State to the territories where they might be tortured or subjected to inhuman or degrading treatment, or the place where their lives and freedom is at risk. The Principle of Non-Refoulement is the cornerstone of the international law relating to refugees. It is considered as the inviolable part of International customary law as well as a key provision of 1951 Convention Relating to the Status of Refugees.
This principle ensures the enjoyment of basic human rights that includes right to life, freedom from cruelty, torture, inhuman or degrading treatment or punishment and security and liberty pf people.
Logic behind this principle
The logic behind this principle is clear, as the rights mentioned above along with many other rights of the people are threatened when a refugee returns to prosecution or danger. Refoulement is explicitly prohibited by some of the most important international human rights instruments.
Both the Geneva Convention that talks about status of refugees and the United Nations Convention that is against crueltly and torture, inhuman or degrading treatment to the refugees or punishment in context to prohibition of refoulement.
Under Article 33 of the Refugee Convention it is stipulated that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Article 3 of the Refugee Convention that is against torture, itbis stated that “No State Party shall expel, return (“refouler”), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights universalises the notion of well being and respect to all the humans. Article 14(1) under The Universal Declaration of Human Rights,is considered to be a foundation of international human rights law and is also a key determiner of the customary international laws. Article 14(1) states that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’, that is for all the people who are afraid of prosecution in any country have the right to asylum in another country (such as Syrian fleeing conflict).
Asylum is a protection that is granted to a person who comes to seek it by a State on their territory or at such other place that is under the control of its organs. It is a well-known institution under the international law which is practiced in certain States with well established historical roots.
It is important to note that a type of asylum or a legal status granted to the refugees is very crucial for their well being as well as for their future. It sets out the obligations and rights for the people who were forced to leave their country. It governs the access to essential services like right to residence, the right to movement in a host country, right to legal employment, right to education and healthcare, which are also the fundamental human rights. The basic rights guaranteed to the refugees is essentially determined under it. The enjoyment of basic rights depends upon each country to the refugees who seek asylum in the particular country. Generally the legal protection that is provided by the countries is below the level recommended by the international laws. The refugees are mostly provided a limited legal status and are exposed to high risk of abuse and exploitation.
International Treaty Law
Treaties are international agreements between states and/or international organizations. Treaty international law is based on the consent of state parties and applies only between those parties. Treaties are binding upon no parties only when they form the basis for customary international law.
The 1951 Refugee Convention and The 1967 Optional Protocol relating to Status of Refugees is an International Treaty Law.
The 1951 Refugee Convention and 1967 Optional Protocol
The 1951 Refugee Convention and The 1967 Optional Protocol relating to Status of Refugees are the controlling international legal tool for refugee law. The scope of 1951 Convention is confined to the Europeans who had become significant refugees as a result of events that occured before January 1951. The 1967 Protocol required the signatories to apply substantive provisions of the 1951 Convention to all the refugees who fell under the definition of the latter but without any limitation to the date, thus making the 1951 Refugee Convention to be applicable globally.
The Convention establishes the refugee definition and also reaffirms the principle of non-refoulement, that is the principal pillar of the body of law. The Convention also established the Office of the United Nations High Commissioner for Refugees (the UNHCR). The main responsibility of UNHCR is to provide international protection to the refugees and assisting the government to seek a permanent solution for the refugee problems. The protection functions include “promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto”. The UNHCR should be permitted by the signatories to the Convention in order to support refugees within their borders. Even the countries who are a signatory to the Convention, they also usually co-operate with UNHCR because it provides humanitarian assistance. UNHCR is the main international organisation that assists refugees in Lebanon, Jordan and Turkey.
The Convention beyond its specific terms has a considerable legal, political and ethical significance. In terms of legal perspective, the Convention provides basic guiding standards which should be carried out for international refugee protection. The political perspective of the Convention is to provide a universal framework which can be utilised by the States to co-operating to share the burden that results out of forced displacement. The ethical significance of the Convention is that it constitutes a unique declaration by 140 signatories, their commitment to protect and uphold the rights of some of the world’s most vulnerable people. Altogether this means that the international legal obligations simply do not disappear because a refugee was not able to reach a territory of the particular state.
In the crisis of Syrian refugees, many states in practice today under the regime of international refugee protection have avoided their responsibilities by stopping refugees from crossing into their respective territories and claim that the state do not have jurisdiction over or any responsibility for refugees in the other’s territory.
The states by adopting the non-entree approach, where the refugees are simply not allowed to enter and invoke the jurisdiction of that particular state, thus the states only remain formally within the realm of refugee law but do not follow fulfill the treaty obligations practically. The responsibility and the jurisdiction for the refugees is not just solely entitled geographically with the state’s territory.
The obligation to protect refugees is a humanitarian need to protect the individuals but also a crucial need for global stability. Burden sharing is also a key for the states to co-operative towards international stability.
The 1951 Refugee Convention and 1967 Optional Protocol, both are international treaty law, that is, they are binding strictly only to the signatories. Still many of their provisions that are related to the asylum and refugees treatment can be considered under international customary law, that is even the states who are not signatories to the Convention or Protocol are still subjected to a certain extent to the treaties, as the Convention and Protocol consist of reference points for determining customary international law and reflects an international consensus to be applied to a nationality on minimum legal standards.
The 1951 Refugee Convention and 1967 Optional Protocol requires:
- Signatories should recognize the fleeing persecution as refugees.
- Measures must be taken by the Signatories to provide food and shelter to the refugees.
- The refugees should receive the same treatment as of foreign nationals in that state in the field of other services and rights (such as education).
- Signatories must put efforts to help the refugees to participate in a workforce.
The key provisions of the 1951 Refugee Convention
- Naturalisation and Assimilation
- Access to Basic service
- Employment
Naturalisation and Assimilation
The 1951 Refugee Convention states that as far as possible the refugees should be facilitated naturalisation and assimilation by the States. The States are under a minimum obligation to provide legal assistance to refugees that includes necessary documents to secure asylum and an official refugee status. The refugees who have gained refugee status and those who are seeking it, under Article 31 of the convention must be granted freedom from the penalty of illegal entry and under Article 32 freedom from expulsion should be provided, along with these rights the refugees must be given access to the Court of law as the nationals of that particular State.
Access to Basic Service
The Refugee Convention requires that refugees are given the same assistance and public relief that is given to the nationals of that particular receiving country along with elementary education. The states are under an obligation to asylum seekers, to provide them public relief that comprises basic necessities such as food, water, shelter medicines. These are the fundamental rights that are necessary to survive. The 1990 Convention on the Rights of the Child provides special protection to the child refugees from child labour, seperation from family, protection from abuse. The States are required to take all appropriate measures ensuring that the children who seek refugee status or who have already secured refugee status are provided with all the rights under The 1990 Convention.
Employment
It is stated in the 1951 Convention that the refugees are entitled to the same right as the nationals are provided in employment and right to legal recourse, if the refugees are subjected to exploitation. The 1951 Convention requires that the refugees are accorded with a fair treatment, that is provided to the alien residents residing in the receiving state for the employment. If the foreign nationals can secure an employment in the receiving State, then the refugees must also be granted this right too. The Convention also recommends the State to take action in order to facilitate the participation of refugees economically within the labour force.
Conclusion
The current host countries have communicated that a small effort for resettlement as a token would hardly make an impact that might attract more refugees in their countries. The countries that offer resettlement must give commitment to receive a sizable number of refugees. They should make efforts to provide actual support rather than showing merely a token of gesture. At this time providing just a token support to the host countries can result in more harm than good. The refugee flow should be shared by as many countries as possible outside the middle east region. At this time of crisis when they need the support, countries should come forward and help them, as the refugees are also not left with an option to continue to live a frightful life in their own country, where they are faced with daily torture and not even provided basic necessities. If the Syrian refugees are allowed by more number of states then it would also lessen the burden of the host states. Just allowing refugees to enter is not a mere solution but providing them with basic necessities to survive and freedom along with basic fundamental rights like right to shelter, right to work, right to legal status, truly open borders and abiding by the principle of the non-refoulement should also be included. The burden-sharing would be beneficial for the displaced Syrian refugees.
References
- https://www.ramapo.edu/law-journal/thesis/the-syrian-refugee-crisis-making-a-case-for-state-obligation-and-humanity/
- https://www.crs.org/media-center/current-issues/syrian-refugee-crisis-facts-and-how-help
- https://academic.oup.com/jogss/article/4/4/464/5487959
- Article on The Syrian Refugee Crisis: Refugees, Conflict, and International Law by AL-MARSAD – Arab Human Rights Centre in Golan Heights.
- Article on Protecting Syrian Refugees: Laws, Policies, and Global Responsibility Sharing by Boston University School of Law.
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