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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.