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The Balancing of Legal and Moral Obligations to Refugees by European Nations
By Rahim Hirji (CAS ’16)
September 15th 2015: the day Hungary became the first European Union state
to refuse any more improperly documented immigrants entry into its territory. European
Union officials responded angrily to the erection of a barbed wire fence by Hungary
along its Serbian border, with Germany’s foreign minister, Frank-Walker Steinmeier,
saying that the E.U. should cut subsidies to nations rejecting migrants 1.
Following weeks of cries from the international community that European
nations have a moral obligation to accept and protect asylum seekers from Middle
Eastern nations, Hungary decided that enough was enough. It declared that the mass
influx of refugees coming in by crossing its Serbian border had led to the country now
being in a state of emergency.
Other E.U. states – notably Germany and Sweden, who have currently taken in
more migrants than any other E.U. states – had already tightened border controls and
documentation checks to control the rapid arrivals of migrants. Hungary, on the other
hand, took a more hostile approach by utilizing tear gas and armed police to prevent
further entry and arresting those trying to cross its fence 2. These measures have caused
Hungary’s immigrant intake to drop from around 6,000 per day to just 30 per day3.
But what is the legal obligation that countries who are worried about receiving
too many migrants must adhere to? European nations, especially Hungary, have heard
the emotional pleas and cries of refugees and the international community, and have
been compelled into feeling that they have a ‘moral obligation’ to aid in the crisis. But
where is the line? When a nation’s own security and economy is threatened, to what
extent does international and European law say that a country has to accept refugees?
The governing rules lie in several documents and treaties, with the United
Nations’ 1951 Refugee Convention governing its 147 ratifiers 4. For many European
countries, a separate agreement in the form of the 1985 Schengen Agreement is also
enforced. The Refugee Convention is a treaty that was created following World War II
to allow the thousands of refugees who were homeless and, in some cases, stateless, to
be protected by the government of another country. “The international community steps
in to ensure they [refugees] are safe and protected,” says the UNHCR, the branch of the
U.N. that is responsible for the status and affairs or refugees 5.
International law states that it is the responsibility of the international
community to protect people whose own governments no longer offers them protection
1
‘Europe starts putting up walls,’ The Economist, September 19th, 2015, 416.
‘Europe starts putting up walls,’ The Economist, September 19th, 2015, 416.
3 ‘Limit info,’ Hungary Police, accessed October 30th 2015. http://www.police.hu/hirek-esinformaciok/hatarinfo
4 ‘The 1951 Refugee Convention,’ The United Nations High Commissioner for Refugees, accessed
October 28th 2015. http://www.unhcr.org/pages/49da0e466.html
5 ‘Text of the 1951 Convention and Protocol Relating to the Status of Refugees,’ The United Nations
High Commissioner for Refugees, accessed October 28th 2015. http://www.unhcr.org/3b66c2aa10.html
2
from discriminatory persecution, war (international or civil), or natural disasters. Under
the convention, by accepting a refugee, the receiving country is obliged to give that
refugee “the same treatment of nationals of the receiving country” for several rights
including freedom of religion, access to courts, and protection of social security. For
rights that do not come under that umbrella, such as the right to own property and the
right to belong to a trade union, refugees must receive “the most favorable treatment
provided to nationals of a foreign country.” The convention goes on to state, “no state
shall expel or return a refugee in any manner whatsoever,” meaning that the burden of
affording thousands of people rights and welfare is long term. A refugee may leave
voluntarily, but has absolutely no obligation to do so.
The Schengen Agreement specifically governs European countries that ratified
the Agreement and therefore whose territory lies in the ‘Schengen Area.’ The
Agreement essentially abolished border controls for travelers between Schengen Area
countries. Any non E.U. citizen wishing to enter a Schengen Area country is required
to have a common visa which grants them permission to enter the area and travel freely
within it 6.
The original Agreement was not obligatory for E.U. states, and the U.K. and
Ireland chose not to participate and instead maintain their own visa policies. Due to
this, the U.K. and Ireland have provided far more legitimate arguments for taking in
fewer migrants. The Agreement was integrated with E.U. law in 1999, meaning that
since then any new E.U. members must also adopt the policies of the Schengen
Agreement. Therefore, when Hungary joined the E.U. in 2003, they were required to
sign onto the Agreement, and it is on this basis that Germany and others are critical
about Hungary’s barbed-wire fence and tear gas utilization. By using mechanisms on
its border with an Schengen neighbor, Hungary is violating the Agreement they signed
twelve years ago. But whilst that may be true, nations have a duty to look after
themselves, their structure, and their citizens. There are two big issues that threaten the
enforcement of this duty for countries like Hungary, who are receiving a large number
of refugees but do not have the economic or security strength of countries like
Germany.
The first issue is the economic one. Hungary has a GDP per capita of €11,900 7,
and its 2014 defence budget was €0.9 billion 8. In contrast, Germany’s GDP per capita
is €39,700 9, and Germany spent €43 billion on defence in 2014 10. A country with an
already relatively low GDP cannot ensure that the immigrants it receives can benefit
from the same standards of treatment as nationals when it comes to welfare benefits,
6
‘The Schengen Agreement,’ EURLex, accessed October 28th 2015. http://eur-lex.europa.eu/legalcontent/EN/ALL/?uri=CELEX:42000A0922(01)
7
‘Hungary GDP per capita,’ Trading Economics, accessed October 29th 2015.
http://www.tradingeconomics.com/hungary/gdp-per-capita
8 ‘Hungary set to increase military expenditure,’ Hungary Today, accessed October 29th 2015.
http://hungarytoday.hu/news/hungary-set-increase-military-expenditures-defence-minister-confirms99827
9
‘Germany GDP per capita,’ Trading Economics, accessed October 29th 2015.
http://www.tradingeconomics.com/germany/gdp-per-capita
10 The International Institute for Strategic Studies,’ accessed October 29th 2015. http://www.iiss.org/
shelter and healthcare, if the immigrants themselves are not obliged to pay anything
into the system, be it in taxes or some other form.
Economic theory and the unpredictability of population change in the E.U. due
to free movement laws mean that for small countries with small GDP’s, it is very
difficult to be able to provide for the number of immigrants that Hungary claims it
would receive if it didn’t shut off its borders. The only other feasible way would see a
decrease in the standard of living for everyone, including that country’s own citizens.
The second issue is security. The prominence of terrorism in the 21st century,
paired with the rise of right-wing parties in Europe over the last ten years, means that
nationalistic and predominantly Christian E.U. states – particularly those in Eastern
Europe – are increasingly skeptical and concerned about welcoming thousands of
people from countries where the roots of extremist Islamic terrorism lie. Additionally,
in February 2015, phone calls intercepted by Italian intelligence provided evidence that
ISIS had threatened to send thousands of migrants to Europe if they were attacked as
part of NATO’s intervention in Libya 11. ISIS is one of the world’s most dangerous
jihadist groups and operates mainly out of seized territory in Syria and Iraq 12. The group
recruits jihadists across the globe and uses local and international terrorism as a method
to achieve their ultimate goal of Sharia law being the law that governs the world.
The capture and arrest – months after the intelligence from the intercepted
phone calls – of an ISIS agent posing as an asylum seeker by authorities in Germany in
September 2015 13, was a warning that ISIS was not making empty threats.
A final point of consideration that has perhaps not been highlighted enough in
global media is the deafening silence from countries in the oil-rich Gulf region
regarding the intake of refugees. The economic concern should barely virtually nonexistent for many of these states. The United Arab Emirates, for example, has the 7th
highest GDP per capita ($65,037 14) in the world and the 110th lowest population density
(90/km2 15). Money? They have it. Space? They have it.
As for security, the goal for groups like ISIS is to spread the rule of Sharia law.
Almost all states in the region implement Sharia law and because of this the threat of
jihadist terrorism, while not totally ruled out, is certainly less likely than in Europe.
Therefore, the reluctance of Gulf States to be more open to receiving refugees is almost
as strange as the relative silence that Europe has maintained about that reluctance.
11 ‘ISIS threatens to send 500,000 migrants to Europe,’ The Daily Mail, accessed October 30th 2015.
http://www.dailymail.co.uk/news/article-2958517/The-Mediterranean-sea-chaos-Gaddafi-s-chillingprophecy-interview-ISIS-threatens-send-500-000-migrants-Europe-psychological-weaponbombed.html
12 “Syria Iraq: The Islamic State Militant Group.” British Broadcasting Corporation, accessed
November 14th 2015.
13 ‘Stunning Arrest in Germany Reveals ISIS plot to infiltrate Europe is succeeding,’ Top Right News,
accessed 30th October 2015. http://toprightnews.com/breaking-stunning-arrest-in-germany-reveals-isisplot-to-infiltrate-europe-is-succeeding/
14 ‘Report for United Arab Emirates,’ International Monetary Fund, accessed November 14th 2015.
http://www.imf.org/external/pubs/ft/weo/2014/02/weodata/weorept.aspx?pr.x=46&pr.y=5&sy=2014&e
y=2018&scsm=1&ssd=1&sort=country&ds=.&br=1&c=466&s=NGDPD%2CNGDPDPC%2CPPPGD
P%2CPPPPC%2CLP&grp=0&a=#download
15 Population Density in the United Arab Emirates,’ Trading Economics, accessed November 14th
2015. http://www.tradingeconomics.com/united-arab-emirates/population-density-people-per-sq-kmwb-data.html
Ultimately there is no law that states a minimum number of refugees that nations
have to take. The 1951 Convention states that refugees must be looked after at a high
standard, and the Schengen Agreement gives refugees with the appropriate
documentation the right to move freely within the Schengen countries. But the necessity
to self-protect economically and from security threats, especially for small European
nations, provides a platform for them to stand up for their choices. And when they
decide that they have fulfilled the moral obligation cry, for them to say that enough
really is enough.