Closing the Crossing: The End of Refugee Autonomy
By: Jessica Caplin
Photo: Steve Evans
For over a year, the Greek Islands have made headlines as a key point of arrival for refugees traveling from Turkey. According to the UN Refugee Agency (UNHCR), in 2015, 856,723 people—mostly Syrians, but also a significant number of Afghans and Iraqis—landed in Greece by sea. Thus far in 2016, over 153,000 have already reached Greek shores. However, on March 24, Greece reported that not a single refugee had arrived on its islands in the preceding 24-hour period.
Though winter weather conditions likely play an important role in the lull, the drop is also critically linked to a series of measures implemented by the EU and Turkey over the last two months: the introduction of NATO patrols in the Aegean Sea and the results of the March 18 EU-Turkey “Migration Summit.” These measures, which ostensibly protect refugees from human smugglers, systematically strip refugees of the autonomy to decide what risks they are willing to accept. With the Aegean Sea “closed,” refugees will have no choice but to turn to more dangerous options in pursuit of perceived safety in Germany or other preferred destinations. As a consequence, the EU and Turkey have sacrificed refugees’ autonomy and safety, violating the underpinnings of international refugee law, in the name of purportedly fulfilling other international law obligations.
The Refugee’s Right to Movement Under International Law
The 1951 Refugee Convention, drafted in response to mass displacement after World War II, leaves much to be desired. The politics of post-war state sovereignty limited the drafters in their prescriptions for mass population influx, leaving gaps in the law that are open to interpretation. What the 1951 Convention does clearly envision, however, is the “widest possible exercise of… fundamental rights and freedoms” for refugees, including the right to autonomy—both to flee harm and to migrate. UNHCR’s Executive Committee has interpreted the 1951 Convention’s article 31 and 33 to mean that refugees may traverse third countries on the way to their desired country of asylum. If they satisfy certain conditions, they may not be penalized for entering a country of asylum illegally. And they cannot be returned to a third country deemed unsafe. In the words of James Hathaway, Director of the Program in Refugee and Asylum Law at the University of Michigan, the protection of refugees under the 1951 Convention is “fundamentally oriented to creating conditions of independence and dignity which enable refugees themselves to decide how they wish to cope with their predicaments.” These rights of movement are similarly enshrined in the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture, the UN Declaration on Human Rights, and, the American Convention on Human Rights—underscoring their longstanding value in the eyes of the international community and their lofty status in the hierarchy of rights.
The NATO Plan and the EU-Turkey Summit Deal
The recent NATO plan and the EU-Turkey Summit deal stand in opposition to that orientation. Under the NATO plan, announced on February 12, NATO ships have deployed into the Aegean Sea, alongside Greek and Turkish coastguard, in what is technically a support role: reconnaissance, monitoring, and surveillance. Though NATO Secretary-General Jens Stoltenberg noted that, under the plan, “NATO’s task is not to turn back boats,” refugees intercepted by NATO ships off the Greek coast would be returned directly to Turkey. Each day, over the past several months, hundreds of refugees have attempted to cross the Aegean Sea, such that the number of refugees impacted by the plan is of deep concern.
The EU-Turkey Summit deal formalizes these returns. On March 18, the European Council released an EU-Turkey Statement outlining that, among other provisions: (1) “all new irregular migrants” crossing to Greece from Turkey as of March 20 “will be returned to Turkey;” (2) for each Syrian returned to Turkey from Greece, the EU will resettle a Syrian from Turkey; and (3) Turkey will “take all necessary measures” to block sea and land routes into the EU. These rules have been set, despite the fact that Turkey included a reservation to the 1967 Protocol to the 1951 Convention, specifying that it only applies the 1951 Convention to “persons who have become refugees as a result of events occurring in Europe.” Thus, by law, Turkey only considers today’s refugees to be “guests,” without the protections of the 1951 Convention.
Human Smugglers – The Problem or Refugees’ Only Solution?
Both the NATO plan and the EU-Turkey Summit deal are rooted in a bid to combat human smuggling, and this concern is not without cause. The dead and missing at sea between Turkey and Greece rose to 395 in 2015, and totaled 321 in just the first two months of 2016. These deaths are related in large part to the conditions under which refugees make the journey to the Greek Islands. Smuggling networks targeting the current refugee flows in Turkey have become a systematized business over the last year. Refugees must raise significant funds, around $3,000, for the journey – only to discover that their transport is a flimsy rubber boat. Those who protest are still forced to board and make the trip. By all measures, these smuggling conditions place refugees at great peril.
The most recent EU-Turkey efforts could thus be framed as a legal and humanitarian victory for Europe. A key Protocol of the Convention against Transnational Organized Crime— the Protocol Against the Smuggling of Migrants by Land, Sea and Air—commits State Parties to preventing human smuggling through effective law enforcement. U.S. Defense Secretary Ash Carter billed the NATO operation that way, noting that “there is now a criminal syndicate that is exploiting these poor people and this is an organized smuggling operation…Targeting [those syndicates] is the way that the greatest effect can be had in the humanitarian dimension.” Similarly, the EU and Turkey claimed that the March Summit deal aims “to break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk,” thereby “end[ing] the irregular migration from Turkey to the EU.” Therefore, through these actions, the EU and Turkey are ostensibly fulfilling their legal and humanitarian obligations to prevent human smuggling under international law.
And yet, human smuggling may be many refugees’ only option when seeking safety. In this respect, what may serve humanitarian aims on paper could have significant negative consequences for refugees on the ground – especially given their right to autonomy under the 1951 Convention. Returns to Turkey and the perception of a closed Aegean will likely not deter many refugees from pursuing access to Europe. The refugees who board rubber boats on Turkish shores are determined; they flee years of violence and atrocity perpetrated against their families and neighbors. According to a recent UNHCR survey, 94 percent of Syrian arrivals in Greece reported leaving Syria because of conflict and violence. Even before fleeing, 85 percent of these had been internally displaced in Syria. Among Afghan arrivals, 71 percent cited conflict and violence as their reason for leaving, and 55 percent had been internally displaced before departure.
These refugees are not returning home any time soon. And, unless they are able to make a living in Turkey, they are unlikely to stay there. Turkey’s 2014 Regulation on Temporary Protection does not introduce an explicit right to work or to access social assistance, and in August 2015, the Ministry of Labor and Social Security announced that there are no plans to widen access to work permits for Syrians. Indeed, in an April-September 2015 survey of Syrian arrivals in Greece, nearly 60 percent cited lack of employment opportunities as a reason for leaving their transit country, while 42 percent cited a lack of financial assistance. In January, Turkey finally promised to allow work permits to Syrians, but notably excluded those from other countries. Still, even Syrian refugees may not work without a valid permit, and they cannot apply for one until six months after the achievement of temporary protective status. Among non-Syrians, the situation is even worse. Sixty-five percent of surveyed Afghan arrivals in Greece reported having no legal documentation whatsoever, the first step to claiming other fundamental rights.
Moreover, some scholars have argued that Turkey does not even qualify as a “safe third country”—a necessary classification for the EU-Turkey plans to operate legally. They question this designation given increasing reports of torture and maltreatment of refugees, as well as Turkey’s failure to recognize today’s refugees’ status under the 1951 Convention.
The NATO and EU-Turkey plans thus leave refugees with little option but to access Europe via more dangerous routes. Rather than re-attempt the Aegean Sea, refugees may instead seek to travel over land via Bulgaria—where smugglers and traffickers await them, likely with higher fees as the market demands. Moreover, Bulgaria has gained notoriety for committing systematic abuses against refugees, and the state will likely respond poorly to greater numbers of travelers. Consequently, in contravention of Europe’s humanitarian and legal obligations, the plans will place refugees in even greater danger of exploitation by smugglers.
The “Pathology” of the Modern Refugee Regime
In a lecture to celebrate the 25th anniversary of the Jesuit Refugee Service, Hathaway argued that a legal regime intended to promote refugee autonomy “has been ‘pathologized’ to focus instead on finding cures to refugeehood.” Although the 1951 Convention was established to guarantee dignity to refugees “until and unless either the cause of their flight is firmly eradicated or the refugee himself or herself chooses to pursue some alternative solution to their disfranchisement,” the system now implements ”top-down solutions” to “fix the refugee problem.” Hathaway presented those words in 2006. Ten years later, they ring truer than ever.
Europe undoubtedly faces a significant burden with the arrival of refugees on its shores and at its borders. Even if its own asylum system had functioned correctly from the start, it still would have been overwhelmed. Yet, the EU and Turkey’s recent measures have shifted the burden onto those refugees struggling most, while simultaneously depriving them of the autonomy to decide where and how to best reach safety. We should thus be concerned that the rhetoric of humanitarian combat against smugglers is depriving refugees of autonomy, limiting their options, and placing them in even greater danger. As the British-Somali poet, Warsan Shire, warns, “you have to understand, no one puts their children in a boat unless the water is safer than the land.”
Jessica Caplin is a JD candidate at Berkeley Law and a former Travaux editor. She will be graduating from Berkeley Law in May 2016 and will be working as a fellow at UNHCR beginning in September 2016.