Homeless, stateless, and global emergencies: international refugee law in times of crisis

by: Elena Cirkovic

The current crisis of overcrowded refugee camps on Lesbos and other Greek islands is reaching even more dire proportions with the Coronavirus pandemic. Around 20 percent of the global populations have been put under lockdown due to coronavirus, while there are over 70.8 million people forcibly displaced from their homes.

The already present inhumane conditions have been the face of the European Union’s asylum and migration policy. After the unilateral opening of the border by Turkey, many refugees tried to enter the EU to apply for asylum. In response, on March 1, 2020, the Greek government suspended the reception of asylum applications evoking Article 78(3) of the Treaty of the Functioning of the EU (TFEU). The action was prompted by the Turkish governments’ announcement on February 28, 2020, that it would cease controlling the land and sea borders with Europe and open the passage for migrants wishing to cross. Article 78 (3) of TFEU allows for provisional measures to be adopted by the Council, on a proposal from the Commission and in consultation with the European Parliament, in the event that one or more Member States are confronted by an emergency situation characterized by a sudden inflow of third-country nationals. At the same time, the provision cannot suspend the internationally recognized right to seek asylum and the principle of non-refoulment that is also emphasized in EU law.

Individual State obligations towards refugees have always demonstrated the persistent tension between the ‘humanity’s law’ project, and particular rights and interests of States. The nonrefoulement rule, stipulated in the 1951 Convention relating to the Status of Refugees (‘1951 Refugee Convention’ or ‘Convention’) has been consistently challenged in practice, and especially in the situations of so-called “mass influx”. The rights of asylum seekers have been conditioned by their numbers for quite some time. For instance, temporary protection directives (TPD) developed in response to “mass influx situations”, thereby suspending or limiting Convention rights. Indeed, the United Nations High Commissioner for Refugees has called for temporary protection in such situations, and the United Nations Security Council has included mass displacement as an example of a threat to international peace and security. More recently, the EU the European Council and Turkey reached an agreement, or the so-called ‘EU-Turkey Statement’ of 18 March 2016 (or ‘the Statement’), aimed at stopping the flow of irregular migration via Turkey to Europe. The Statement challenges the legal status of refugees as conferred by and consistent with the provisions of the 1951 Convention, and all rights and responsibilities deriving from this status.

On 19 September 2016, the United Nations General Assembly hosted a Summit for Refugees and Migrants that aimed at improving the way in which the international community responds to large movements of refugees and migrants. At the Summit, the Member States of the United Nations unanimously adopted the New York Declaration for Refugees and Migrants (Resolution 71/1). It affirmed the relevance of fundamental international and human rights norms relating to the movement of people across borders as well as the sovereign right of States to control their borders. The Declaration also gave UNHCR the task of building upon the Comprehensive Refugee Response Framework (CRRF), contained in Annex I of the New York Declaration, to develop a ‘global compact on refugees’. The Global Compact on Refugees (Refugee Compact) was affirmed by the member states of the UN General Assembly on 17 December 2018 in the annual resolution on the work of UNHCR.   The accompanying Comprehensive Refugee Response Framework states that ‘[t]he scale and nature of refugee displacement today requires us to act in a comprehensive and predictable manner in large-scale refugee movements’(Para 1). The Refugee Compact was intended to address the absence of agreement on the common operational mechanisms and clear provisions for international cooperation in emergency situations.

The 1951 Refugee Convention already allows for the large margin of interpretation of the rule of non-refoulment, which has resulted in a history of determent and containment practices. These, in turn,  hinder asylum seekers from reaching the territory. The more recent developments: including the ‘global’ nature of the Refugee Compact and the regional measures in the EU-Turkey Statement affirm further the policies of containment. Hence, the existing tensions surrounding the rule of non-refoulment, as it is stipulated in the Convention, are also evident in the more recent instruments.
Certainly, existing gaps in international refugee law have resulted in a concentration of refugees in regions neighboring the states of origin, which often struggle with infrastructure capacities. Humanitarian assistance offered in those countries has focused on practices such as resilience-building in spaces such as refugee camps, deflecting further from possibilities for permanent residency. The Refugee Compact lists as one of its principal objectives, the need to ‘ease pressures on host countries’ (para 7). This objective merely supports the already existing deterrent and extraterritorial measures, which states have introduced to prevent refugee movements thus forming a more restrictive modern refugee regime: a non-entrée regime, or the argument that ‘the main property of the modern refugee regime is its restrictiveness’.

However, in the context of a pandemic and global emergency, the existing tension built in the 1951 Refugee Convention, between the absolute principle of non-refoulment on the one hand, and the exceptions under which states are allowed to deny access across its borders, is only becoming stronger, if not even more brutal.  Even without the existential threat of something like a virus, measures such as the EU- Turkey Statement already pose a challenge to the legal architecture of the ECHR, and how the broader interpretation of what constitutes a national emergency can result in legally questionable solutions. Finally, the recent breakdown of the EU-Turkey relations demonstrates the consequences of such politically charged measures, which in this case resulted in the suspension of the rule of law at the Greek border. The Refugee Compact as an example of the developing global framework expresses as one of its objectives, provision for more support for individual state discretion and extraordinary measures. The New York Declaration, also affirmed the relevance of fundamental international and human rights norms relating to the movement of people across borders (while recognizing the sovereign right of States to control their borders). The right of Sovereign states, however, expands at the times of emergency. Yet again, the state-centric approach of international governance is unable to respond to the ‘global’. The refugee and the homeless remain the true test of ‘humanity’ at the same time when non-human agents such as coronavirus also expose the weaknesses of the current frame of governance. At a time when governments are enforcing lockdowns, hostility towards the stateless, homeless, forcibly displaced, has increased.