By Charles H. Camp and Theresa Bowman
Despite the unanimous agreement of United Nations member states to commit as an international community to global humanitarian relief, many countries are reflecting the discomfort their electorates have with offering asylum to the recent Syrian refugees. In this article, the authors discuss the Responsibility to Protect doctrine and argue that if the doctrine is to mean anything, the “international community” obliged to protect should be understood to include more than simply the U.N. member states themselves.
In September 2015, European Union interior ministers attempted, and failed to reach consensus on proposed mandatory mechanisms by which refugees into the EU could be relocated and protected more evenly among member states. The majority-approved plan will distribute 120,000 asylum seekers among EU member states, as well as implement voluntary mechanisms within the EU and increase support for asylum systems in countries outside of the EU such as Turkey. Critics of the outcome, including Human Rights Watch, called the meeting a mere agreement of the EU “to push responsibility to countries outside the [EU].”
That same month, in a report of the United Nations Commission of Inquiry on Syria, U.N. investigators concluded that the responsibility to protect Syrian refugees “is not being adequately shared or shouldered.”
[ms-protect-content id=”544″]Indeed, as of January 2016 over 4.6 million people have fled Syria according to United Nations registries, although the true number is likely much higher.1 Countries in the region, especially Lebanon, Jordan, and Turkey, have hosted the great majority of Syrian refugees. Turkey has hosted over 2 million refugees, Lebanon has taken in nearly 1.1 million, and Jordan has taken over 600,000 refugees.2 The European Union came under fire in 2014 for offering asylum to so few refugees by comparison, an estimated 124,000, but has since been overwhelmed by a mass migration requiring a greater response.3 The September 2015 agreement constituted the first major attempt by the EU to coordinate resettlements of the vast migrating populations among EU member states.
Meanwhile, Gulf States such as Saudi Arabia, Kuwait, Bahrain, Qatar, Oman and the United Arab Emirates have given millions of dollars to the United Nations in humanitarian aid, but have opened their borders to only extremely low numbers of refugees.4
International treaties such as the 1951 Refugee Convention encourage, and indeed commit, signatory sovereigns to participate responsibly in the humanitarian aid of refugees fleeing human rights atrocities. Notably, the 1951 Convention gives refugees that have fled the right to not be repatriated except in extreme circumstances.
Article 33 of the 1951 Convention prohibits signatory sovereigns from expelling refugees it has accepted or returning them “to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, [or] nationality.”5 Article 33 creates an exception to this rule for persons a signatory has “reasonable grounds for regarding as a danger to the security of the country.”6
The 1951 Convention does not, however, resolve the issue of how the international community can be encouraged to more evenly respond to a refugee crisis. Interestingly, many of the host countries – especially Lebanon and Jordan – which have so disproportionately accommodated Syrian refugees, are not signatories of the 1951 Convention.7
It is perhaps with this problem of global engagement in mind that the United Nations has, over the past decade, increasingly promoted the idea of a global “Responsibility to Protect” victims of mass atrocities on the part of all United Nations member states, not just those whose borders are easily overwhelmed by proximity to a humanitarian disaster. In theory, the adoption of a “Responsibility to Protect” approach to human rights would obligate sovereigns from all over the world, and not just regionally, to accommodate refugees in greater numbers.
At the 2005 United Nations World Summit,8 the international community unanimously agreed that “[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and that “[t]he international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means…to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”9 In 2009, U.N. Secretary-General Ban Ki-moon issued a report articulating the international community’s “Responsibility to Protect” as a responsibility to act in a timely and decisive way to prevent and halt human rights atrocities where a sovereign has failed to protect its own population.10
The Responsibility to Protect doctrine is controversial for its perceived potential to justify unilateral state military action in violation of Article 2(4) of the U.N. Charter, which broadly prohibits the use of force. But in the context of the refugee crisis, sovereigns have a larger toolbox for fulfilling a responsibility to protect without impinging upon the sovereignty of other states.
These tools include financial aid, refugee education and outreach programs, and perhaps most importantly, asylum.
As explained by the United Nations High Commissioner on Refugees, “[t]here may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms.”11
However, there is a growing tension between international efforts to commit sovereigns and world leaders to thinking differently about human rights as a global responsibility, and the willingness of sovereigns to carry out those norms when the political cost of unpopular domestic proposals is high.
Despite the unanimous agreement of United Nations member states to commit as an international community to global humanitarian relief, many countries are reflecting the discomfort their electorates have with offering asylum. This fear and discomfort has recently led to a number of widely condemned policies: Slovakia has refused to accept refugees from “Muslim countries”12 and Denmark has proposed to seize refugee assets.13
This tension is likewise playing out in dramatic fashion in the United States. The United States has decided to work with the United Nations to accept 10,000 refugees over the next five year,14 but many governors of its states have expressly refused to accept Syrian families.15
To date, thirty-one state governors have refused to resettle Syrian refugees accepted by the United States as a matter of public safety. Indiana, Texas, Alabama and other states have sued the federal government to enforce what they say is a legal requirement that the federal government consult with states “concerning the sponsorship process and the intended distribution of refugees” prior to the refugee’s placement.16
The governor of Texas, for example, has sued the federal government for its purported failure to provide Texas with information about the families assigned to Texas for resettlement so Texas can independently determine the acceptability of the federal government’s screening procedures to identify terrorists among the refugees.17
The US states’ opposition to accepting Syrian refugees appears to have more to do with fear of terrorists masquerading as Syrian refugees than it does the law, or any measurable security threat posed by Syrian refugees.
In sharp contrast to the hundreds of thousands of refugees seeking answers and homes in Europe, the Middle East, and North Africa, the United States has admitted only 2,174 Syrian refugees since September 11, 2001.18 Not a single individual has been arrested or deported on terrorism-related grounds.19 President Obama’s recent plan to resettle 10,000 Syrian refugees is likewise dwarfed by the numbers in Europe, North Africa, and the Middle East, where untold numbers seek asylum from within those countries’ borders.
While the mass movement of so many undocumented refugees into Europe, North Africa, and the Middle East has understandably complicated efforts to track terrorist organisations and heightened security concerns, the United States has the comparative luxury of ensuring that incoming refugees can be screened and vetted before entering the country. The screening process is extensive: sometimes taking up to two years, and involving interviews and background checks by the United Nations High Commissioner for Refugees as well as multiple U.S. intelligence agencies.20
The unpredictable and devastating risks of terrorism cannot, and should not, be downplayed as a general matter. However, the risk posed by the Syrian refugee program in the United States appears disproportionate to the domestic political push back the program has received from US states.
United States federal law is likewise clear that a refusal of state governments to accept refugees is illegal, and likely unconstitutional as the United States federal government has exclusive authority to “control immigration – to admit or exclude aliens,”21 and act “in the field of international relations.”22 US states are thus pre-empted from interfering with or opposing the federal government’s resettlement decisions. The issue of refugee resettlement is “committed to the discretion of the executive branch of the federal government.”23
Consistent with this discretion, the federal government exercised its exclusive authority over immigration and international law by enacting the Refugee Act of 1980.24 The Refugee Act, in turn, creates “comprehensive and uniform provisions for effective resettlement”25 and authorised the President to determine the number of refugees the United States will accept annually as “justified by humanitarian concerns or [as] otherwise in the national interest.”26
The Syrian refugee crisis constitutes one of the largest movements of displaced populations since World War II. Critics of the 1951 Refugee Convention argue that because, as of 1951, “[n]o one imagined that cross-border escape from persecution would become a global phenomenon,” the 1951 Convention has “become outmoded and obsolete.”27 Professor Andrew Schoenholtz, director of Human Rights Institute, responds that the Convention continues to ably address the needs of refugees given its flexibility in applying to evolving definitions of state persecutors and crises, and its clear guiding mandate – to protect individuals when their countries have failed to do so.28
If the Responsibility to Protect doctrine is to find increased relevance as a vehicle for the promotion of global humanitarian cooperation, a similar flexibility must be realised. If the doctrine is to mean anything, the “international community” obliged to protect should be understood to include more than simply the U.N. member states themselves. U.N. engagement of state actors and policymakers in the development of the responsibility to protect doctrine will have to increasingly include internal state and local authorities within sovereign state territories, intergovernmental organisations, and other stakeholders with the power to assist in development of humanitarian aid and combat the inherent fear such aid can inspire. This is becoming increasingly important in light of US state’s failure to recognise that they too are a part of the international community with corresponding responsibilities to protect, or at least, to not interfere with the United States’ exercise of its actions to protect Syrian refugees.
In the words of Senator Dianne Feinstein: “[t]he Syrian people are the ones suffering the most from both ISIL and the Assad regime, and the international community has a responsibility to protect those fleeing the depravity.”29
About the Authors
Charles H. Camp teaches international negotiations at George Washington University Law School and is an international lawyer based in Washington, D.C. with thirty years experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. After practicing at large, international law firms for twenty years, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in 2001 to focus exclusively on effective, personalised representation in complex, international matters.
Theresa Bowman is a senior associate at the Law Offices of Charles H. Camp, P.C., practicing in the areas of international commercial disputes and arbitration. Before her current post, Ms. Bowman, a graduate of the George Washington University Law School and President of the Student Bar Association, completed a post-graduate fellowship as a judicial law clerk for the Honorable Reggie B. Walton, District Court Judge for the District of Columbia.
References
1. Syria Regional Refugee Response, U.N.H.C.R. http://data.unhcr.org/ syrianrefugees/regional.php (accessed January 2015)
2. Id.
3. E. Tendayi Achiume. Syria, Cost-sharing, and the Responsibility to Protect Refugees. 100 Minn. L. Rev. 687 at fn. 7 (December 2015) quoting Europe Must Give Syrian Refugees a Home, Guardian (July 22, 2014).
4. Holly Yan (2015). “Are Countries obligated to take in refugees? In some cases, yes.” http://www.cnn.com/2015/09/08/world/refugee-obligation/
5. 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 137 (1951)
6. Id.
7. 100 Minn. L. Rev. 687
8. United Nations (2011). “United Nations Office on Genocide Prevention and The Responsibility to Protect,” Publication No. 11-60043, November 2011, U.N..org/preventgenocide/adviser
9. World Summit Outcome Document (2005). At paras. 138, 139.
10. Implementing the responsibility to protect, Report of the Secretary-General, U.N. Doc. A/63/677 (2009)
11. United Nations High Commissioner on Refugees. Policy Development and Evaluation Service, Brian Barbour, Brian Gorlick, “Embracing the ‘responsibility to protect’: a repertoire of measures including asylum for potential victims,” 1, Research Paper No. 159, (July 2008).
12. Deutsche Welle. “Slovakia vows to refuse entry to Muslim migrants” (January 7, 2016)
13. BBC News, “Migrant crisis: Denmark MPs consider seizing valuables” (January 13, 2016)
14. Laura Koran (2015), “Kerry: U.S. committed to accepting more Syrian refugees,” CNN.com (September 9, 2015)
15. Ashley Fantz, Ben Brumfield, “More than half the nation’s governors say Syrian refugees not welcome” CNN
(November 19, 2015)
16. 8 U.S.C. § 1552(a)(2)(A).
17. Plaintiffs’ Complaint, Civil Action No. 3:15-cv-3851, at 4-6 (N.D. Tex.) (Dec. 2 2015)
18. Executive Office of the President, Statement Of Administration Policy Re: H.R. 4038 – American SAFE Act of 2015 (November 18, 2015)
19. Id.
20. Background Briefing on Refugee Screening and Admissions, U.S. Department of State Office of the Spokesperson (available at http://www.state.gov/r/pa/prs/ps/2015/11/249613.htm) (November 17, 2015), see also Russell Berman, Can Terrorists Really Infiltrate the Syrian Refugee Program?, The Atlantic. http://www.theatlantic.com/politics/archive/2015/11/can-terrorists-really-infiltrate-the-syrian-refugee-program/416475/) (November 18, 2015)
21. Truax v. Raich, 239 U. S. 33, 42 (1915)
22. United countries v. Curtiss-Wright Export Corp., 299 U.S. 304, 299 (1936)
23. December 9, 2015, Order, Civil Action No. 3:15-cv-3851, at 4-6 (N.D. Tex., Dec. 9, 2015)
24. Refugee Act, Pub. L. No. 96-212, 94 Stat. 102.
25. Pub. L. No. 96-212, § 101(b).
26. 8 U.S.C. § 1157(a)(2).
27. Andrew Schoenholtz, The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century, 16 Chi. J. Int’l L. 81 (Summer 2015)
28. Id.
29. Sierra Sun Times, “Senator Dianne Feinstein Commenting on Syrian Refugees Said, ‘We Need To Be Very Careful About Syrian Refugee Admissions’” (November 17, 2015)
