Christine Prorok, Vol. 37 Associate Editor
As hundreds of thousands of refugees flee states in the Middle East and Africa, bound largely for countries in the European Union, the international community has struggled to furnish a consistent response to accepting refugees. And some have no intent to accept refugees at all.
While Chancellor Angela Merkel has asserted that the right to asylum has no “upper limit,” and that Germany would welcome all those seeking asylum within the country’s borders, other states have been less willing to extend open arms to refugees. From placing “migrant caps” on the number of refugees permitted to enter a state, to forbidding any from crossing its borders at all, most European countries have expressed hesitancy about accepting refugees and refuse to do so unconditionally. Hungary has erected a barbed-wire fence to keep migrants out and has resorted to using teargas and water cannons to deter migrants from entering the country. The Danish government has placed “advertisements” with the Lebanese press, making clear to migrants that they are not welcome. And several countries have considered adopting a “migrant cap,” meaning a limit on the number of migrants a country is willing to accept within a specified period of time. The United Kingdom has been an advocate of this approach, offering to take in only 20,000 refugees over the next five years, and some German government officials have rejected Merkel’s view and urged the need for some sort of similar upper limit to migration.
There has been discussion of whether such measures limiting the movement of refugees are, in fact, legal. Important to understanding the legal consequences of state action regarding the refugee crisis is the distinction between refugees and migrants. While the two terms are often used interchangeably in news reports and public discourse, these designations are legally distinct. A migrant is simply someone moving from one country to another. A refugee, on the other hand, is defined by the 1951 Refugee Convention as someone who flees a country because of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” in that country. While some of those traveling to Europe during this present crisis may accurately be considered migrants, most are refugees and thus, afforded an elevated legal protection.
A strong argument can be made that limiting the number of, or altogether refusing to accept, refugees violates international law. Merkel has taken this approach, asserting her belief that countries are forbidden to turn away refugees. Frans Timmermans, an EU official charged with defending the rule of law and fundamental rights, similarly commented that “migrant caps” violate international law. While it is somewhat unclear from these broad statements to which provisions of international law they are referring, the most likely and strongest basis for this argument is the 1951 Refugee Convention and subsequent 1967 Protocol. This treaty outlines the rights of refugees and duties of states to act in their protection. Article 33 mandates that no state expel or return (“refouler”) refugees to a place where their life or freedom would be threatened on account of their race, religion, nationality, or membership of a particular social group or political opinion, with one narrow exception for those individuals who are reasonably considered a threat to the nation’s security. The UN High Commissioner for Refugees explains that the principle of non-refoulement adumbrated by Article 33 encompasses not only the expulsion of those already within a country, but also the rejection of refugees using measures such as erecting fences or pushing off boat arrivals. While a treaty only creates a binding international legal obligation for those parties who have signed and ratified it, the principle of non-refoulement has subsequently become a customary international law principle, binding on all countries unless they explicitly expressed disagreement as that principle was developing.
There is some room for debate about the interpretation of Article 33 of the 1951 Refugee Convention. A narrow interpretation of the Article would require the refugee to already be present in the county of the party to the treaty in order to receive international protection, including protection against refoulement. However, a broad interpretation would consider refugees to be within the power of a country even before entering that country, thus triggering the obligation. This broader interpretation would be more in line with the meaning expressed by the UNCHR of the principle of non-refoulement and calls into question many of the practices states have used or considered in order to deter or refuse refugees, including “migrant caps” and Hungary’s fence, for example.
Even if it were affirmatively shown that an international legal obligation exists here, that is only the first step in resolving the issue. Enforcing international obligations is often an uphill battle with low accountability for international actors. States like Hungary may believe that the harm to them by complying with the obligation and accepting a large number of refugees will be greater that the harm that could be imposed by other states in the face of their noncompliance. This and such other political choices are often the driving force in international relations. Without a strong base of states asserting international legal obligations with regard to the refugee crisis, it will be difficult to enforce any violations.
 Merkel at her limit, The Economist (Oct. 10, 2015), http://www.economist.com/news/europe/21672296-after-historic-embrace-refugees-german-public-opinion-turning-merkel-her-limit.
 Migrant crisis: Refugees walk final miles through Hungary, CNN (Sept. 22, 2015), http://www.cnn.com/2015/09/19/world/europe-migrant-crisis.
 Charles Duxbury, Denmark Takes Out Ads to Tell Refugees They Aren’t Welcome, The Wall Street Journal (Sept. 7, 2015), http://www.wsj.com/articles/denmark-takes-out-adverts-to-tell-refugees-they-arent-welcome-1441630475.
 Patrick Wintour, UK to take up to 20,000 Syrian refugees over five years, David Cameron confirms, The Guardian (Sept. 7, 2015), http://www.theguardian.com/world/2015/sep/07/uk-will-accept-up-to-20000-syrian-refugees-david-cameron-confirms.
 Ben Knight, Seehofer widens rift with Merkel over refugee policy, Deutsche Welle (Sept. 10, 2015), http://www.dw.com/en/seehofer-widens-rift-with-merkel-over-refugee-policy/a-18773458.
 Somini Sengupta, Migrant or Refugee? There Is a Difference, With Legal Implications, The New York Times (Aug. 27, 2015), http://www.nytimes.com/2015/08/28/world/migrants-refugees-europe-syria.html.
 Protocol Relating to the Status of Refugees art. 1, Jan. 31, 1967, 606 U.N.T.S. 267; Convention Relating to the Status of Refugees art. 1, July 28, 1951, 189 U.N.T.S. 137.
 Sengupta, supra note 6.
 Emily Bazelon, Who Qualifies for ‘Asylum’?, The New York Times (Sept. 15, 2015), http://www.nytimes.com/2015/09/20/magazine/who-qualifies-for-asylum.html?_r=0.
 Valentina Pop, Migrant Cap Would Violate International Law, The Wall Street Journal (Oct. 1, 2015), http://www.wsj.com/articles/migrant-cap-would-violate-international-law-says-eu-official-1443711430.
 The 1967 Protocol simply extends the 1951 Refugee Convention by eliminating its deadline and geographic constraints.
 Convention and Protocol Relating to the Status of Refugees art. 33, supra note 7.
 UN High Commissioner for Refugees (UNHCR), UNHCR Note on the Principle of Non-Refoulement, UNCHR (Nov. 1997), http://www.refworld.org/docid/438c6d972.html.
 In this case, there are 142 parties to both the 1951 Refugee Convention and 1967 Protocol, notably, the United Kingdom, Hungary, Denmark, Croatia, Serbia, and Germany, as well as most other European countries. UN High Commissioner for Refugees (UNCHR), State Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, UNCHR, http://www.unhcr.org/3b73b0d63.html.
 UN High Commissioner for Refugees (UNHCR), Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Jan. 26, 2007), http://www.refworld.org/pdfid/45f17a1a4.pdf.