Abstract
The foregoing quotes reflect a central aspect of the refugee dilemma; namely ‘where does the refugee asylum seeker belong?’ Many States and regional organizations of States such as the European Union are, given the current global refugee crisis, grappling with the urgent question of determining precisely what are the State obligations and for which State in respect of: (1) the process for consideration of particular refugee asylum claims of individuals and individuals who are members of an identifiable collective and (2) the possible grant, if any, of asylum; these obligations being set out in various international law instruments and in some cases domestic law but their interpretation yet vigorously debated. Often as not States that might serve as places of refuge for particular groups of asylum seekers earnestly attempt to sidestep the issue of refugee asylum and at times engage also in refoulement in various masked forms.
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Notes
- 1.
Nardelli, Alberto. Angela Merkel’s stance on refugees means she stands alone against catastrophe The Guardian November 8, 2015. https://www.theguardian.com/commentisfree/2015/nov/08/angela-merkel-refugee-crisis-europe Accessed 27 April, 2017.
- 2.
Oudejans, N Asylum: A Philosophical Inquiry into the International Protection of Refugees, PhD Dissertation, Tilburg University, p. 10.
- 3.
The term ‘refugee asylum seeker’ is used here to refer to (1) a person who, on the facts, is a bona fide refugee as per the Refugee Convention or based on other international law and (2) who is seeking asylum and may or may not yet have entered the country in which he/she hopes to be granted asylum and who may or may not have declared their presence to State authorities as a refugee wishing to obtain asylum. The term here then refers to refugees who may or may not have been yet formally recognized as such or granted legal status as a prima facie refugee within a prospective asylum State or transit State and who, in any case, have not yet officially received asylum through a fair and impartial legal process considering individual cases on their merits.
- 4.
On the view here; persons internally displaced who have been forcibly displaced due to persecution/oppressive circumstances linked to persecution/discrimination etc. should properly be the beneficiary of refugee international law protections. Indeed, for instance, the U.S. under its refugee admission resettlement program (prior to the Trump travel ban on refugees abroad who allegedly did not have a bona fide tie to the U.S.) allowed Iraqi-US affiliated persons (Iraqis who had served to support U.S. military efforts during the Iraq war in some capacity as translators and the like) to apply for refugee asylum to the U.S. whether they were still inside Iraq or in some transit country. It seems illogical and incoherent at best to maintain that internally displaced persons “while they may have fled for similar reasons [to those recognized as refugees], …stay within their own country and remain under the protection of its government, even if that government is the reason for their displacement” and hence that actual and potential victims of persecution cannot be considered refugees per a narrow reading of the Refugee Convention (UNHCR Internally Displaced People at http://www.unhcr.org/en-us/internally-displaced-people.html). This topic, however, is beyond the scope of this book.
- 5.
‘Safe Zones” combined with closed borders in neighboring potential transit countries arguably serve to negate the right to flee as a refugee seeking asylum. Countries supporting such safe zones while not challenging closed borders in respect of any neighboring country that could absorb additional asylum seekers if given the proper support from wealthier States is, it is here argued, in effect violating international refugee and basic human rights law (i.e. international human rights law as pertains to the right to freedom of movement (European Convention on Human Rights: Article 2(2): “Everyone shall be free to leave any country, including his own”).
- 6.
Human Rights Watch (2017) Syria: Coordinated chemical attacks on Aleppo: UN Security Council should impose sanctions (13 February, 2017).
- 7.
See Supreme Court of the United States, Donald J. Trump, President of the United States et al v International Refugee Assistance Project et al 582 U. S. ____ (2017) which provides a history of the Trump travel ban executive orders at pp. 1–4.
- 8.
Save the Children (2017) End of Childhood Report, 2017 “Stolen Childhood’ at p. 20.
- 9.
Save the Children (2017) End of Childhood Report, 2017 “Stolen Childhood’ at p. 20.
- 10.
Refugee Convention (1951) and 1967 Protocol http://www.unhcr.org/en-us/about-us/background/4ec262df9/1951-convention-relating-status-refugees-its-1967-protocol.html Accessed 16 September, 2017.
- 11.
Supreme Court of the United States, Donald J. Trump, President of the United States et al v International Refugee Assistance Project et al 582 U. S. ____ (2017) (Opinion of June 26, 2017).
- 12.
For the time being, the latest Supreme Court of the United States ruling (without reasons provided) has allowed the third iteration of the Trump travel ban to be implemented notwithstanding whether or not the person in question barred from entry has a bona fide relationship to a person or entity in the U.S. save for any case-by-case exemption the government provides. Donald J. Trump, President of the United States, et al., Applicants v. Hawaii, et al. (Opinion of December 4, 2017). The question of whether or not the latest President Trump travel ban meets the constitutional test will be decided at the Supreme Court of the United States once the latest appeals have wound their way through the lower courts and the case is heard on its merits by the USSC.
- 13.
As previously mentioned the focus in this work is on those recognized under international law as refugees as opposed to persons recognized as internally displaced. This is the focus though, on the view here, since (1) at least a certain segment of the IDP population is in practice also (as with de jure refugees) no longer under the protection of their home State but rather persecuted by the State government and/or by non-State groups and others acting as proxies for the government as in Syria; as a result (2) this IDP population is arguably no longer in law under the jurisdiction of their home State; this given that protection of its citizens and those habitually residing in the State is a prime obligation in the exercise of sovereign authority. Where the State directly or through proxies persecutes any segment of its civilian population causing those persons to be internally displaced; it has lost the moral and legal authority to exercise sovereign jurisdiction over that IDP population. To hold otherwise is to suggest that international law considers the State’s power of sovereign jurisdiction to be absolute and unfettered. On the current analysis then IDP populations should be regarded as entitled to refugee protections as de facto refugees (this entitlement being the case, it is here contended, regardless whether or not the IDPs are being protected by non-State actors such as UNHRC (such protection in any case typically involving circumstances not particularly conducive, if at all, to children reaching their full potential for good physical, cognitive, psychological and spiritual development).
- 14.
Grover (2015), pp. 1112–1128.
- 15.
Townsend. M Women and children ‘endure rape, beatings and abuse’ inside Dunkirk’s refugee camp The Guardian 12 February, 2017 https://www.theguardian.com/world/2017/feb/12/dunkirk-child-refugees-risk-sexual-violence Accessed 16 September, 2017.
- 16.
Many child refugees, even very young children, as will be discussed here through selected case law, have been held in unsuitable government-run detention facilities in various countries sometimes with other family members or, even separated from family (i.e. with parents held in a separate detention centre); the latter in violation of provisions of international human rights treaties that stipulate the right of children to stay with their family unit where such is in the child’s best interests rather than being arbitrarily deprived of association with parents and other family members (i.e. Article 22 (2) of the Convention on the Rights of the Child stresses the right of the refugee child to the family unit and the State’s obligation to make every effort to reunite families separated through circumstances such as occurred on their refugee journey in search of safety). In addition unaccompanied refugee children have often been held in non-child friendly detention centers by the prospective asylum State which facilities have frequently proved to be living circumstances deleterious to the child refugee’s mental health.
- 17.
The makeshift camp which existed near Calais has been described through first-hand accounts as providing inhumane living conditions.
- 18.
Deprivation of the basic necessities of life threatening survival of a refugee collective then could potentially rise to a crime against humanity or if the group met the criteria set out in the Genocide Convention potentially even rise to the level of an actual act of genocide i.e. the Burmese military is creating masses of Rohingya refugees and depriving them of a means of survival in part by burning down their villages Human Rights Watch (15 September, 2017) Burma: Military torches homes near border: New Satellite Images, Data Show 62 Destroyed Rohingya Villages https://www.hrw.org/news/2017/09/15/burma-military-torches-homes-near-border Accessed 17 September, 2017.
- 19.
Coen (2017), pp. 46–60.
- 20.
Oudejans, N Asylum: A Philosophical Inquiry into the International Protection of Refugees, PhD Dissertation, Tilburg University, p. 6.
- 21.
Oudejans, N Asylum: A Philosophical Inquiry into the International Protection of Refugees, PhD Dissertation, Tilburg University, p. 7.
- 22.
- 23.
In the United States ‘asylee’ is the term applied most commonly to persons who have crossed into the United States without proper legal status and seek asylum either on their own initiative or pursuant to apprehension or who sought asylum at a port of entry to the U.S. In contrast, the U.S. uses the term refugee to refer to those who were outside of the U.S. when they were screened for admission and received status as a recognized bona fide refugee approved for resettlement in the U.S. See Zong, J. and Batalova, J Migration and Policy Institute: Spotlight: Refugees and Asylees in the United States (7 June, 2017) http://www.migrationpolicy.org/article/refugees-and-asylees-united-states Accessed 17 September, 2017.
- 24.
We will consider also children who had refugee status formally assigned i.e. by the UNHCR or would so qualify but have been unable to cross out of their home State or are unable to leave a third State that was to provide but temporary safe haven. This bar to movement being due to various factors such as extraterritorial migration controls being imposed (i.e. the Trump suspension of the U.S. refugee admission and resettlement program).
- 25.
For instance see the codification of this arguably customary law principle of a high duty of care and protection owed children in Article 78: Evacuation of Children: Additional Protocol I (1977) to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts regarding the evacuation from conflict zones (on ostensibly a temporary basis) including potentially to another country (with various restrictive stipulations applied in respect of implementing such an evacuation) also of children who are non-nationals where there are compelling reasons relating to the children’s protection needs or for their health or to make possible their receiving urgent medical treatment.
- 26.
The Convention on the Rights of the Child (CRC), entry into force 2 September 1990, at Article 22 guarantees refugee children, whether accompanied or unaccompanied, “appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention [the CRC] and in other international human rights or humanitarian instruments to which the said States are Parties.” Hence refugee children are entitled under the CRC to non-discriminatory treatment, as are all children, in realizing their protection and participation rights under the CRC and under other relevant international treaty law to which the CRC State Parties have agreed to be bound. In addition, on the analysis here, CRC Article 22 also implicates State Party obligations to children under jus cogens and customary law.
- 27.
Joint General Comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration. (See also Joint General Comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return) The latter General Comment holds there must be a guarantee of access to the territory for a child who may be in need of international protection (regardless whether the child has proper entry documentation etc.) in order that their proper migration status can be determined with due regard to the child’s best interests (Article 17 (a)) and other relevant factors.
- 28.
Grover (2012).
- 29.
Brief for Amicus Curiae American Professional Society on the Abuse of Children in Support of the Plaintiffs-Appellees In the United States Court of Appeals for the Ninth Circuit State of Hawaii; Ismail Elshikh v Donal J. Trump in his official capacity as President of the United States and others No. 17-15589.
- 30.
Power, S Remarks on “The Global Refugee Crisis: Overcoming Fears and Spurring Action,” (June 29, 2016).
- 31.
In the Supreme Court of the United States Donald J. Trump et al v State of Hawaii et al Brief of Amicus Curiae American Professional Society on the Abuse of Children in Support of the Respondent (12 June, 2017), p. 6.
- 32.
Though the focus is on child refugees in this work, it is here suggested that similar legally insupportable bars are employed by States in respect of blocking adult refugee asylum seekers as are employed against child refugee asylum seekers i.e. domestic statutory schemes and extraterritorial migration measures arguably inconsistent with democratic constitutional values and designed in effect to deny the right to seek asylum and to prohibit entry.
- 33.
Convention on the Rights of the Child, entry into force 2 September 1990 (i.e. Article 3 on best interests of the child as a primary consideration).
- 34.
See for instance Additional Protocol 1 (Article 77) and II (Article 4(3) to the 1948 Geneva Conventions which set out the child’s right to special protection consideration, care and respect in times of armed conflict.
- 35.
Power, S Remarks on “The Global Refugee Crisis: Overcoming Fears and Spurring Action,” (June 29, 2016).
- 36.
Grover (2014).
- 37.
Power, S. Remarks at a UN Security Council Emergency Briefing on Syria (December 13, 2016).
- 38.
See Grover, S on the targeting of children in particular for mass atrocities as a propaganda tool: Grover (2014).
- 39.
Power, S “The Global Refugee Crisis: Overcoming Fears and Spurring Action,” (June 29, 2016).
- 40.
Janmyr M (2013) UNHCR-A Humanitarian Organization with a Mandate to Protect Civilians in Refugee Camps, Norwegian Centre for Humanitarian Studies.
- 41.
Oudejans, N Asylum: A Philosophical Inquiry into the International Protection of Refugees, PhD Dissertation, Tilburg University p. 6.
- 42.
Oudejans, N A Philosophical Inquiry into the International Protection of Refugees, PhD Dissertation, Tilburg University pp. 6–7.
- 43.
Grover (2017).
- 44.
R2P refers, as most commonly understood, to the notion that the international community has a legal responsibility to protect civilians against the potential or ongoing occurrence of the mass atrocity crimes of genocide, large scale war crimes, ethnic cleansing and crimes against humanity.
- 45.
Grover (2015), pp. 1112–1128.
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United States Court of Appeals for the Ninth Circuit State of Hawaii; Ismail Elshikh v Donal J. Trump in his official capacity as President of the United States; Department of Homeland Security; Department of State; John F. Kelly in his official capacity as Secretary of Homeland Security; Rex W. Tillerson in his official capacity as Secretary of State, United States of America
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Grover, S.C. (2018). Introduction: Contesting Barriers to Child Refugee Asylum. In: Child Refugee Asylum as a Basic Human Right. Springer, Cham. https://doi.org/10.1007/978-3-319-78013-9_1
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