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Monday, April 4, 2016, Chaitra 21, 1422 BS, Jamadius Sani 25, 1437 Hijri

Refugee Crisis in Europe
Reflections on legal and institutional weaknesses
Abu Sufian Shamrat
Published :Monday, 4 April, 2016,  Time : 12:00 AM  View Count : 66
Beginning of the 21st century experienced several dramatic and considerable issues in global politics. After the terrorist attack of 9/11, tangible and intangible issues became more globalized where every national issue revealed a greater regional as well as global implication. In order to uproot the core of terrorism, the global north often attacked and intervened within the states of global south (more specifically the Middle East and the North Africa) i.e. Afghanistan, Iraq, Syria, Libya, Tunisia, Sudan and others. Due to the rise of terrorism and religious militancy, civil wars, environmental degradation, energyeopolitics, unequal distribution of resources, and centralized power structure along with illiberal nature of governments, these regions are becoming more insecure in terms of the security of living, occupation, religion, ethnic identity, culture and social cohesion. As the people of these regions are migrating to Europe crossing the Mediterranean Sea by boats of human traffickers taking life risk in order to seek refuge for ensuring a relatively secured life. But the number of refugees in Europe is rising geometrically after the abortive Arab Spring and the increasing level of terrorist organizations i.e. ISIS, Al-Qaeda, Al-Nusra Front, Al-Shabaab and so on. In recent times, the European Union (EU) is in dilemma centring the issue of refugee crisis where the member states are fragmenting in order to address the issue as well as their subsequent responsibilities to provide asylum rights for these refugees. Indeed, the refugee crisis is intensifying due to the lack of a unified legal system merging EU refugee laws with international refugee laws as well as the deficit of coordination, coherence and cohesion among the institutions of EU and the UN.
Every year, millions of persons invoke the protection of international refugee law, making it one of the most relevant international human rights mechanisms. The only international legal norms applying specifically to refugees at global level are the 1951 UN Convention relating to the status of refugees (Geneva Convention) and the 1967 Protocol relating to the status of refugees. According to Article 1 of the 1951 UN Convention, as modified by the 1967 Protocol, a refugee is defined as a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". The purpose of the Convention is to assure protection to refugees, as defined in the Convention, by ensuring that they are not returned to their country or sent to any other territory where they could face persecution. Article 33 puts forward what has become known as the principle of non-refoulement (non-return): "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened".
The EU is ensured in three ways legally and theoretically regarding refugee protection. Firstly, member states are all signatories of international refugee law treaties. These agreements are mainly incorporated through the Qualification Directive (2011/95/EU) of the EU. Secondly, binding European human rights instruments are present as complementary contracts, also having a focus on non-refoulement and persecution. Thirdly, besides legal documents, certain European refugee transfer theories contribute to the formation of member state practices violating the principle of non-refoulement. Indeed, the 'Schengen rules' and the 'Dublin system' also contributed in shaping the legal regimes on refugees' treatment and subsequent protection. The Schengen rules set out conditions for crossing borders, in conjunction with no controls on internal borders. The Schengen Borders Code contains general exceptions relating to refugees and human rights, as well as specific asylum exceptions from the normal rules on the grounds for admission, and from the requirement to penalizing those who cross the external border without authorization (Steve Peers: 2015).In 2003, the Dublin system established the theoretical framework (safe third country practice) of member state cooperation regarding the transportation of refugees. The Dublin system has led to cooperation between member states which forms the basis of relocation, chain relocation and transfers among states (Kaunert and Leonard: 2011). However, the 2009 Stockholm Programme, known as the 'Common European Asylum System' (CEAS), focused on the externalization of asylum, and also called for a common European policy besides the legal framework.
As one of the international legal institutions it is the UNHCR's role to ensure that the main principles of refugee treaties are upheld in all signing states. In order to do so, the UNHCR monitors, advises and cooperates with states and, when necessary, also acts as a supervisor and intervenes in cases of violation. By ratifying the main refugee treaties, states have accepted the common responsibility to host and protect the world's refugees. International Organization for Migration (IOM) also works to help ensure the orderly and humane management of migration, to promote international cooperation on migration issues, to assist in the search for practical solutions to migration problems and to provide humanitarian assistance to migrants. In the case of Europe, the EU is the first and foremost institution to provide humanitarian and procedural assistance to the refugees. There are also other EU institutions like Frontex (detects and stops illegal immigration, human trafficking and terrorist infiltration), the Task Force Mediterranean (taking actions in cooperation with third countries and fighting against trafficking, smuggling and organized crime), the European Commission on Human Rights and others.
Even there exists a huge number of legal regimes and institutional mechanisms for ensuring human rights of the refugees though the level of vulnerabilities and violation of gross human rights of the asylum seekers are increasing due to the following reasons. Firstly, the Geneva Convention gives States a degree of flexibility to insist upon a 'safe third country' requirement, but there is no absolute rule that refugees must always apply in a safe third country. Secondly, there is no specific requirement to build fences, as several member states have done. Building fences is not ruled out by the Schengen rules, but it is member states which decide to build the fences as a means of controlling the border, not the EU. Thirdly, the Schengen system does not ban people from seeking asylum at EU borders, although it makes it harder for them to reach the territory and more likely to risk their lives trying. But there is nothing in EU law to prevent member states from resettling large numbers of refugees directly from conflict zones if they wish to. Fourthly, the Dublin system has undoubtedly shifted a significantly higher burden to certain Member States (Greece, Italy, Malta and Hungary at present), which is increasingly difficult to manage as migration flows have increased. Even the courts have ruled that each EU country should have share the burden of refugees though the states are interpreting the legal documents according to their own way in order to establish their political will of the majority. Fifthly, the 2011Global Approach to Migration and Mobility (GAMM) fails to ensure the needs of refugees initiating the European framework as control-oriented system. Sixthly, rising populism as well as growing pressures within national level politics against the refugees makes it difficult for the EU members to construct a unified legal regime on refugee protection. Seventhly, the growing intensity of terrorist attacks in Europe and the connection of some migrants in these attacks are making it difficult for the refugees to claim asylum in Europe. Eighthly, international as well as European institutions failed to fabric a coherent and collective order to ensure security and rights of the refugees 'the floating lives from the Mediterranean to Europe'.
Abu Sufian Shamrat is Researcher at Bangladesh Centre for Political Studies (BCPS). Email: [email protected]

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