On Global Jamais-vu: Rejection at the Frontier and the Non-Refoulement Paradox

Non-refoulement refers to the idea that those fleeing persecution on account of their ‘race, religion, nationality, membership of a particular social group or political opinion’ should not be forced to return where they will be subjected to further persecution; fundamental to both the 1951 Convention relating to the Status of Refugees and the 1967 Protocol to the convention. Sustained state practice and vested interest groups among key UNHRC donor states have rendered the principle ineffectual. Given present events in Europe, it is important to articulate a consolidated stance on refugee policy to keep the institution of asylum from spiralling into complete collapse – as it historically already has.

1. A crisis of foresight

National policy on refugees is necessarily encumbered with two strands of issues; economic concerns centred on the resources required to cope with the influx; and political concerns, inasmuch as refugees are seen as rebels against the incumbent socio-political order of the origin state and the act of accommodating them tacit aggression against their state of origin; and also insofar as control over borders and entry is understood as a primary metric of state sovereignty. In the realpolitik realm, a state’s reaction to refugees may often be dictated by domestic prejudice against an ‘Other-ized’ identity – anti-Semitism is understood as a crucial factor in the sealing of many European borders during the 1930s and 40s.

Nations across Europe used a variety of strategies to dissuade Jewish refugees during the Second World War. Switzerland, for example, sealed its borders in August 1942 to block inflow of Jewish refugees, despite reports in the Swiss media from the period showing that the existence of extermination camps in Nazi-occupied Europe was general knowledge. In this wave of anti-refugee sentiment, ‘over-foreignization’ or ‘Überfremdung’ was a recurring term, some conservative campaigns rallied for all refugees to be denied higher schooling. The Americas did not necessarily fare much better – in one particularly notorious case, the S.S. St. Louis, a ship carrying over 930 Jewish refugees, was forced to go back to Europe after Cuba, the US, and several Latin American nations denied them entry.

Shortly after the start of the Second World War, 32 states met in Evian, France to discuss the growing exodus of refugees from Germany and Austria – deliberations that led to the formation of the Intergovernmental Committee on Refugees or ‘IGCR’. An attempt at a more universal asylum mechanism to succeed region-specific schemes, like the Nansen Passports issued to refugees fleeing the Russian civil war. The IGCR remained a toothless body, as participants were concerned more with preventing any further agreement vis-à-vis German refugees seeking asylum, to pacify domestic political opinions. This was reiterated in Marrus’s argument that Evian merely ‘highlighted the unwillingness of most Western states to accommodate Jewish refugees’.

By the end of 1943, more than 15 million people throughout Europe had fled the advancing German armies, 8 million Europeans had been deported to Germany as forced labourers, while 6 million Jews had been moved to Nazi concentration camps in German-occupied Poland. While there was a significant number of survivors among the first two, an overwhelming majority of the third category perished. From all perspectives, mortality figures for Europe’s Jewish citizenry were significantly exacerbated by borderline xenophobic refugee policies.

The post-World War 2 refugee protection regime came as a direct response to this humanitarian catastrophe. There was, therefore, a strong ideological basis for codification of the normative obligation of all states to not return refugees to areas where their life may be at risk. The status of non-refoulement as central to the very purpose of the 1951 Convention may be understood from the fact that it is one of only two articles in the instrument that no contracting state may make a reservation to, the other pertains to the right of ‘exit’ from a state where persecution is inescapable.

2. A crisis of legitimacy

A major practical issue has since developed regarding implementation of non-refoulement – does the rule cover situations of physical blockades of national borders and other measures aimed at preventing any actual entry of asylum seekers? This flows from a major discrepancy in the international refugee rights regime; while the right to seek asylum is recognized, there is no corresponding obligation for a state to grant asylum. Similarly, the right to leave one’s country of origin or habitual residence cannot be operationalized without an obligation on the part of other nation states to grant entry.

Non-refoulement has been explicitly linked to non-rejection at the border in the OAU Convention and the Cartagena Declaration. The UNHCR has repeatedly stressed that “the fundamental principle of non-refoulement involving non-rejection at the frontier must be scrupulously observed.” Actual state practice, however, has obfuscated this. Powerful states in the post-Cold War period maintain that they are under no obligation to allow refugees in, the US Supreme Court consolidated this stance in Sale v. Haitian Councils Centre, 1993, confirming the legality of the US practice of intercepting and forcibly returning Haitians at sea. In other cases, humanitarian rescue agendas have been dictated by interested, powerful Western parties, while the UNHCR plays only a passive role.

In the broader context of rejection at the frontier, physical border closures are a Global South phenomenon, as richer nations typically have far more elaborate methods of keeping refugees out. Strategies have remained largely constant before and after the Second World War, redoubling visa restrictions, narrowing the definition of ‘political refugee’ to exclude certain groups, devising elaborate procedural requirements for asylum applications to create a larger sample space for grounds of rejection, and rejection at sea. Border closures typically have one of two characters – a security/capacity based closure, where a state claims threats to its ‘security’ – economic, demographic or political – to justify rejection. Or participation-based closures – where an otherwise generous host state may seal borders due to a sense of lack of cooperation by the international community.

In one instance – significant in terms of its policy implications – Turkey refused to admit ethnic Kurds fleeing violent state reprisals – including mass-murder of entire Kurdish villages using chemical warfare – for ‘revolutionary activities’ in Saddam-ruled Iraq in the early 90s. Ostensibly a political rather than economic, ‘capacity’ based decision, as over 350,000 Bulgarian Turks were readily accommodated for permanent settlement during The Great Excursion in 1989.

Because of strategic interests along the restive Turkey-Iraq border and in Turkey as a crucial middle-east ally, the US along with other Coalition states lobbied strongly against condemnation of Ankara’s decision to refoule refugees from its border areas. US President Bush argued instead for the establishment of a militarized ‘safe zone’ within Iraqi territory – repatriation contingent upon protection from the Iraqi government, and on continued US military presence (‘Operation Provide Comfort’). Demilitarization would have led to another massive displacement, which Ankara clarified would be met with another border closure – justified by precedent. UNHCR, while initially reluctant to join the repatriation program, eventually shifted its focus away from the Turkish border closure’s impact on asylum.

The key policy implication for UNHCR was that it had little ability to impact events once borders were sealed. In Turkey, it had to face the choice of continuing to resist the politically tainted plans of key donor states (incidentally also the key military powers) which subverted the mandate principles, or actively participate in it – acknowledging its significant impact on protection principles. Political interests and prejudice have continued to underlie international responses to border closures; and states have cited the North Iraq ‘safe zone’ solution, and the US practice of refouling Haitians at sea as justification for blocking refugee inflow.

3. A crisis of hindsight

The refugee law debate has been rekindled in light of the current situation in Europe. Predictably, border control and fencing has come up almost overnight in many host states, ending two decades of open movement in much of the continent. The number of refugees heading for Europe remains minor in absolute terms, none of the top ten host states for inflow are in Europe. Large-scale refugee crises and situations of mass-influx remain a largely Global South phenomenon. As such, given the broader trend of Western practices being taken as precedent, it is important for the UNHCR to articulate a determined stance on current border closures as well as indirect strategies for rejection in Europe. A laissez-faire position on Europe will almost certainly impact its legitimacy should it aim to influence national policies on similar situations in Southern states, which are usually much more severe.

Wesley Hofeld describes four sets of ‘jural correlatives’, legal interests that exist on opposite sides of two entities involved in a legal relationship. A ‘right’ cannot be operationalized without a commensurate ‘duty’ on the part of a state. In these terms alone, non-refoulement remains a chimera at the international level – a full circle since the humanitarian crisis of the Second World War. A puzzling case of global amnesia.

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