The Need for Internationally Accepted Refugee Laws
Zachary Anderson, Vol. 37 Associate Editor
The recent Syrian refugee crisis has put a massive amount of strain on Europe. An estimated 32,000 asylum applications were recorded in Europe in July of this year alone. In the wake of this crisis, arguably cruel responses by European governments and individuals have garnered the international spotlight, exposing serious shortcomings in the ability of international law to protect the rights of migrants. For example, Hungary has closed its border with Serbia, built a fence, and launched an anti-immigration campaign. Hungarian officials have also been recorded shooting migrants with water cannons and throwing tear gas over the newly constructed fence into crowds of refugees. The Universal Declaration of Human Rights states, “Everyone has the right to seek and enjoy in other countries asylum from prosecution.” International law seems to clearly condemn Hungary’s actions, and similar actions taken by other countries. The United Nations High Commissioner for Refugees (“UNHCR”) Executive Committee agreed to a set of internationally recognized basic standards of treatment in refugee emergencies. Among these standards are ensuring that borders remain open, adherence to standards of treatment consistent with universal human rights, and non-discrimination based on religion or race. Needless to say, several European countries have largely ignored these internationally recognized standards during the present crisis. In addition to the examples above, Slovakia has announced that it will only accept Christian migrants, excluding Muslims, in clear contravention of the UNHCR guidelines. The problem is as old as international law itself: the UNHCR’s guidelines are not binding. Although they may be “internationally recognized,” there is no enforcement mechanism to ensure compliance. Lack of enforcement mechanisms in international law is a problem that will likely remain unsolved for years to come. However, more consistent refugee policies, especially in Europe during this current crisis, could prevent the degrading treatment of migrants by unaccountable national governments. An effort to conform refugee laws amongst European nations would spread the burden around Europe, taking pressure off countries like Hungary, thus alleviating the (perhaps locally politically popular) temptation to resort to methods like water cannons and tear gas. The obvious, though woefully optimistic, method of accomplishing this unification of laws would be for European countries to locally codify the UNHCR guidelines of open borders and equal treatment of refugees, thus making it illegal to close borders and discriminate against refugees. More practically, European nations should at least make it illegal to close borders in times of migration crises. Were the European Union (“EU”) to pass a law disallowing border closings during a refugee crisis, Hungary would be coerced into compliance because it would not want to lose its benefits as a member of the EU. This would prevent border confrontations and spread the burden of migrant influxes more efficiently. It seems like an equitable principle that Hungary, as a member of the EU, should share the burden of the influx of migrants instead of passing it off to neighboring nations like Croatia. Additionally, unified refugee laws would spread the burden of mass migrations by making each participating nation as attractive to refugees as the next. Under the current regime, Syrian refugees are trying to get to Germany, which has arguably the most refugee-friendly policies in Europe. Through an international effort to unify refugee policy, migrant paths will be dispersed throughout Europe. Instead of a massive wave of people trying to get through Hungary to Germany, refugees will take various paths to whichever European country best suits them (notwithstanding the currently-suspended Dublin Regulation). A European refugee law, instead of various national laws, is in Hungary’s best interest as a burden-sharing mechanism. The non-binding nature of international law will always pose problems to unified legal efforts. However, the EU provides incentives for nations like Hungary to comply with an EU-based law. Also, the mutually beneficial nature of an international refugee arrangement would ensure compliance since nations, acting in their sovereign capacity, could be ensured to act in their own best interests. Most importantly, however, the international community has agreed that human beings deserve a certain basic level of treatment, and being sprayed with water cannons and tear gas does not meet that level. In order to live up to our own standards of decency, the legal infrastructure for dealing with vulnerable members of different countries fleeing atrocities must be built to protect them.
 Kemal Kirisci, Why 100,000s of Syrian Refugees are Fleeing to Europe, Brooking Institute: Order From Chaos (Sept. 3, 2015, 12:15pm), http://www.brookings.edu/blogs/order-from-chaos/posts/2015/09/03-eu-refugee-crisis-kirisci.  See, e.g., Holly Yan, Refugee Crisis: Hungarian Camerawoman Trips, Kicks Migrants, CNN (Sept. 10, 2015), http://www.cnn.com/2015/09/09/europe/hungarian-camerawoman-migrant-firing/; See also, Daniel Tilles, Defend Against ‘Islamic Invasion’ or Help ‘Our Immigrant Brothers’? The Refugee Debate in Poland’s Media, Notes from Poland (Sept. 9, 2015), http://notesfrompoland.com/2015/09/09/defend-against-islamic-invasion-or-help-our-immigrant-brothers-the-refugee-debate-in-polands-media/.  Alison Smale, Migrants Race North as Hungary Builds a Border Fence, N.Y. Times (Aug. 24, 2015), http://www.nytimes.com/2015/08/25/world/europe/migrants-push-toward-hungary-as-a-border-fence-rises.html?_r=0.  Hungary Fires Tear Gas, Water Cannon at Refugees, Aljazeera (Sept. 16, 2015), http://www.aljazeera.com/news/2015/09/hungary-tear-gas-water-cannon-refugees-150916140918312.html.  G.A. Res. 217 (III) A, Universal Declaration of Human Rights, at Article 14(1) (Dec. 10, 1948).  Marilyn Achiron and Kate Jastram, Refugee Protection: A Guide to International Refugee Law, 66-67 (2001), available at http://www.unhcr.org/3d4aba564.html.  Migrant Crisis: Slovakia ‘Will Only Accept Christians’, BBC News (Aug. 19, 2015), http://www.bbc.com/news/world-europe-33986738.  Smale, supra note 3.