PUBLIC INTERNATIONAL LAW PROJECT

TOPIC: SYRIAN REFUGEE CRISIS AND

INTERNATIONAL LAW

SUBMITTED BY: SUBMITTED TO:

Parul Sukhariya Dr. Sukhwinder Kaur Virk
ROLL NO.: 18104
GROUP NO.: 6
RAJIV GANDHI NATIONAL UNIVERSITY OF
LAW
2019
ACKNOWLEDGEMENT
1|Page
On the completion of this project, it is my first privilege to acknowledge my heartfelt gratitude
and indebtedness towards my teacher for their valuable suggestion and constructive criticism.
Their precious guidance and unrelenting support kept me on the right path throughout the whole
project and very much thankful to the teacher incharge and project coordinator for giving me this
relevant and knowledgeable topic.

I wish to express my sincere gratitude to my PIL teacher, Dr. Sukhwinder Kaur Virk ma’am, for
their guidance and encouragement in carrying out this project.

I also wish to express my thanks to my group members and my friends for their ideas because of
which this project became more captivating. I am also thankful to my institution for providing a
broad range of books to learn more.

TABLE OF CONTENTS
2|Page
 INTRODUCTION ………………………………………………………...4
Definition of refugee……………………………………………………….6
Situation of refugees……………………………………………………….7
 INTERNATIONAL LEGAL FRAMEWORK…………………………..8
Refuges rights in Europe …………………………………………………8
UDHR……………………………………………………………………...10
UNHCR……………………………………………………………………11
1951 Convention and 1967 protocol…………………………………….12
Principle of non-refoulement…………………………………………….14
 REALISTIC SOLUTIONS TO THE SYRIAN REFUGEE CRISIS….15
Discretionary clauses in the Dublin regulations………………………..16
Through implementation of voluntary repatriation practice………….17
Encouraging resettlement programs……………………………………17
 CONCLUSION............................................................................................19

INTRODUCTION

3|Page
Syria is a multi-religious and multi-cultural country. The Syrian religious demography includes
Sunni Arabs, Shia Arabs, Christian Arabs, Muslim Kurds, and Syrian Palestinians (Fargues,
2014). The majority (87%) are Muslim (the official religion in Syria, includes 74% Sunni and
13% Shia, which includes 8- 15% Alawites and a smaller portion of Ismailis) (CIA 2016, BBC
2011). The religious minorities include Christian 10% (Orthodox, Uniate, and Nestorian), Druze
3%, and a small number of Jews remaining in Damascus and Aleppo. While the Sunni Arab
population has constituted the majority in Syria, since the regime of Hafiz Al-Assad, it has been
dominated by Alawi elite government and military officers. Although only forming a minority of
the total Syrian population, Alawites have dominated the Syrian army, a legacy of French
colonialism. This sectarianism has played an important role in forming a solid political identity
for the regime of the Alawite Al-Assad family, personified in Hafiz Al-Assad, and now Basher
Al-Assad.

2000-2011 (Bashar Al-Assad regime)

Following the death of Hafiz Al-Assad in 2000, his son Bashar Al-Assad inherited the
Presidency of the authoritarian regime, establishing what perhaps (2014) calls “modernizing
authoritarianism”. The liberalizing promise of the regime change was short-lived as Bashar al-
Assad initiated a military crackdown of the Arab Spring protesters, resulting in a civil war.
Modernizing authoritarianism saw an unprecedented period of economic development in Syria.
This rapid top-down economic development benefited the elites and enriched the Al-Assad
family; it also left economic and social welfare for middle and lower classes lagging far behind.
At the same time, the 2003 Iraq war provoked the resurgence of sectarian conflicts.
Internationally, Syria’s isolation from Western countries directed its attention to Arab Gulf
countries (particularly Iran, Turkey) and Russia, bolstering PanArabism. However, it also
resulted in a deteriorating relationship with the USA. Bashar Al-Assad’s support for the Iraq war
posed another problem to the new regime by bolstering the sectarian violence which had
continued since his father’s regime. According to Phillips (2015), the politicized national identity
through sectarianism was provoked by the similar topology of the Iraqi war: Sunni vs. Shia
(mostly Alawites), with the majority in the military being Alawites loyal to the Al-Assad regime.
Meanwhile, rapid economic development restructured the social base of Syria. The military and
rural nationalist constituencies which formed the base of the Al-Assad regime were joined by so

4|Page
called "crony capitalists", but the new bourgeoisie and technocratic class started to raise their
voices against the regime, destabilizing the Ba'ath Party. Widespread corruption arose out of this
situation, resulting in further concentration of wealth in the elite groups. Inequality widened as
Al-Assad cut spending on social welfare, and rampant speculation on the urban housing market
resulted in increased homelessness. The country’s deteriorating infrastructure exacerbated
poverty, as the poor water supply system failed to adequately support rural agricultural and drove
thousands of people to cities in the drought of 2007-2010 . Syria saw a 10 percent increase in
poverty between 2005 and 2011 (Haddad 2011). While unrest and political pressures
necessitated the shift to a more pluralistic regime, Bashar Al-Assad responded with wide spread
repression. The regime also attempted to maintain national unity through pan-Arabism, lending
support to Iraq and intervening in Lebanon, with renewed support for Hamas and Hezbollah.
These foreign policies based on panArabism gave a certain legitimacy to the regime but also
fostered tensions within Syria.1

2011-The civil war

It is imperative to note that the civil war which started in 2011 and is ongoing, cannot be
reduced to purely sectarian conflicts. Not only did the intervention of foreign countries add
another layer to the civil war, but additionally the domestic unrest was also shaped by religious,
class, ethnic and political interests. The interaction of these factors have perpetuated and
exacerbated the maelstrom of the civil war.

While the Syrian economy was being decimated by the civil war, its neighbors and former allies
(Arab League countries, and Turkey) began to impose sanctions against the repression by the Al-
Assad regime. In addition to the institutional isolation from the West, the ending of economic
ties with Turkey and Arab Gulf countries accelerated distrust of the regime by the new
bourgeoisie. In Hinnebudch’s account, this created regional opposition power centres within
Syria. Dividing lines came to be drawn between the pro-western Sunni axis (backed by U.S.,
Canada, EU, and Turkey) and the Shi’ite Resistance axis (supported by Russia, Iran, Iraq, and
Hezbollah). Russia and Iran are the only two countries with economic trade relations with Syria.
By December 2012, the U.S., the U.K., France, Turkey and Arab Gulf states formally recognized

1
https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=1748&context=ilr

5|Page
the opposition National Coalition, which was composed of rebels as legitimate representatives of
the Syrian people. In June 2013, pro Assad groups and allied Lebanese Hezbollah forces
recaptured the strategically important town of al-Qusayr, located between the western city of
Homs and the Lebanese border. During this period, the intervention of foreign countries’
governments remained indirect, supplying military aid and training, maintaining economic ties,
and accusing countries of the opposite side of escalating the violence.

2014: Enter ISIS

The civil war became even more complex and violent because of the surging presence of ISIS in
Iraq and Syria (ISIS is also known as Islamic State and the Levant, ISIL, and Daesh). In 2014,
this group, consisting of Sunni insurgent groups originally supporting Al-Qaeda, declared the
restoration of a “caliphate” in the territory of Iraq and Syria where historically a caliphate regime
once was, and claimed authority over Muslims worldwide. This emergent group, which was put
on the list of terrorists by the U.S. government, now constituted a third party in the Syrian
turmoil. In 2014, the U.S. declared that in cooperation with Arab Nations, it would expand its
military intervention to the civil war in Syria in order to help Kurdish people battling against IS
(Marsden, 2014).2 For the same reason, Russia carried out air strikes in Syria the following year.
By March 2016, France, Jordan, Qatar, Turkey, and Israel implemented air strikes and the
majority of countries changed their opinions to support military interventions in Syria in reaction
to the terrorist attack on Paris.

DEFINITION OF REFUGEE

Article 1 of the 1951 convention gives the definition for the purposes of this treaty. The
convention applies

1. To the persons who had been considered refugees in accordance with previous treaties
and agreements on the subjects; and
2. To every person who as a result of events occurring before 1 January 1951 and owing to
well-founded fear of being prosecuted for reason of race, religion, nationality,
membership of a particular social group or political opinion is outside the country of his

2
https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?article=1328&context=honorstheses

6|Page
 nationality and is unable or owing to such fear, is unwilling to avail himself of the
protection of that country or who, not having a nationality and being outside the country
of his former residence as a result of such events, is unable or unwilling to return to it.

SITUTUATION OF REFUGEES

The Syrian refugee crisis has become one of the hot topics of global arena. On one side, there
are plenty of discussions regarding the better solutions for the problem and many criticisms
of current policies that governments applied. On the other side, every day dozens of people
has been losing their lives while attempting to cross the Mediterranean Sea by boat with a
hope of a new life.

One of the main challenges was the insufficiency of existing asylum system of countries and
in addition to that, false steps taken by governments which badly influence state itself, the
society of host country and refugees as well. The best examples to this can be given as
Turkey and Germany. Since the beginning of the conflict in Syria, Turkey has received the
largest number of refugees to the country by implementing ‘open door’ policy. Very similar
to that, Germany has become a country which accepted the biggest number of Syrian
refugees amongst other EU countries, again by applying ‘open door’ policy proposed by the
Chancellor Angela Merkel. However, with an excessive amount refugee coming to both
countries, the governments have failed to fulfill the needs and provide food, water, shelter
and basic health care. As it is mentioned earlier more than 3 million Syrians registered in
Turkey. Besides this number, it is estimated that there 24 are thousands of people who entry
to the country without being registered. This has been demonstrating the fact that the door is
also open for malicious people and possible damaging incidents in Turkey as well as
European countries since Turkey is a passageway for Syrians who are willing to arrive
Europe. The lack of regulation system in host countries has been creating significant
damages. From refugees’ point of views, they are reduced to live in very bad conditions even
sometimes without basic needs and this forces them to find another place with better
circumstances especially for their children in order to maintain their lives. In this stage of
their life, migrant smugglers seem a reasonable option in their opinions which threatens
countries’ security and refugees’ safety as well.

7|Page
 After recovering from the stage of the struggle for survival, the other challenge is to be
accepted by the public indulgently. In this stage of their life undermined by hate speeches or
bad discoursed of people, particularly politicians. Furthermore, this disturbing manner not
only offend refugees but at the same time influence public opinion about them. Thus, this
creates another stage for refugees with a full of difficulties.3

INTERNATIONAL LEGAL FRAMEWORK

The international legal framework guiding the protection of refugees is based on the legal
instruments created after WWI and WWII. When there were 40 million displaced persons in
Europe in 1945, few intergovernmental and international support existed for the assistance of
refugees. However, with such a large crisis on hand, foundations for the legal framework we still
rely on today were laid out. In 1950, the Office for the High Commissioner of Refugees was
established as a United Nations agency mandated to assist refugees and in 1951 the Convention
Relating to the Status of Refugees established the UN multilateral treaty that defines a refugee
and outlines their basic rights. It is important to take a closer look not only at the Refugee
Convention itself but also the preceding organizations that led to its creation in order to
understand the obstacles in creating such a regime. Furthermore, certain articles of the Refugee
Convention are especially important in understanding the gaps that allowed states to create
current policies based on language in this treaty.

REFUGEES RIGHTS IN EUROPE

Europe is slightly more complex because it has different systems that address regional protection
of human rights. One of these systems is the Council of Europe. The Council of Europe was
established in 1949 and currently has forty-seven members. With the regional organization’s
goal being to promote democracy and human rights, the Convention for the Protection of Human
Rights and Fundamental Freedoms was developed in 1950 in order “to provide an express
regional recognition of most of the rights set out in the UDHR and to provide international
mechanisms to police their implementation.” Also known as the European Convention of Human
Rights (“ECHR”), the rights included in this convention mirror many of the fundamental rights

3
http://www.democraticprogress.org/wp-content/uploads/2016/06/Refugees-and-Conflict.pdf

8|Page
found under the International Covenant on Civil and Political Rights (“ICCPR”). Later in 1961,
the Council of Europe created the European Social Charter (“ESC”), mirroring many of the
fundamental rights found in the International Covenant of Economic, Social, and Cultural Rights
(“ICESCR”).

In regards to the ECHR, the instrument does not make any direct reference to asylum seekers.
However, many of the protections listed have been extended to many refugees. Article 3 is most
often called upon to protect asylum seekers and refugees, which holds that “no one shall be
subjected to torture or inhuman or degrading treatment or punishment.”This article thus makes
states responsible for the wellbeing of individuals from other countries The other articles that
may also be invoked to ensure refugee protection include Article 4 (prohibition of forced or
compulsory labour), Article 5 (deprivation of liberty), Article 6 (right to a fair and impartial
hearing “within a reasonable time), Article 8 (respect for private and family life), Article 9 (right
to freedom of thought, conscience and religion), Article 10 (right to freedom of expression),
Article 13 (right to the grant of an effective remedy before a national authority) and Article 16
(no restrictions on political activity of aliens) can offer substantial protection. 4

Thus, the ESC contains explicit language governing the protection of refugees by making direct
reference to the term “refugee” unlike that of the ECHR. Furthermore, rights to refugees under
the ESC have been expanded through case law under Article 12(4)(a), regarding the system of
social security, and Article 13(1), regarding the right to social and medical assistance. Clearly,
the Council of Europe is a regional system that has afforded some rights to refugees.

Another European regional system that helps protect human rights is the European Union.
Organized in 1993, this geo-political entity consisting of twenty-eight countries was “designed to
enhance European political and economic integration by creating a single currency (the euro), a
unified foreign and security policy, and common citizenship rights and by advancing cooperation
in the areas of immigration, asylum, and judicial affairs.” These goals were advanced through the
creation of the Charter of Fundamental Rights of the European Union. This Charter entered into
force in 2009 and was seen as an effort to synthesize all the fundamental rights that already
seemed to be established into one document so as to provide clarity among EU members.

4
http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-
9780199652433-e-021

9|Page
 The Charter recognizes the rights and freedoms included in the ECHR, and also sets out a
variety of different individual rights and freedoms. Among these are rights granted to refugees.
Specifically, the Charter recognizes asylum in Article 18:

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention
of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in
accordance with the Treaty establishing the European Community.5

Because the Charter is one of the more recently ratified instruments, it seems to have had the
benefit of hindsight in regards to its creation. Thus, it took the initiative to recognize many of the
already existing fundamental rights, including refugee rights, and made efforts to explicitly
recognize such rights as shown in Article 18. The various instruments in the European region
make it abundantly clear that they have made efforts to recognize refugee rights.

UNITED DECLARATION OF HUMAN RIGHTS (UDHR)

Article 14 (I) of the Universal Declaration of Human Rights, considered the foundation of
international human rights law and a key determiner of customary international law, states that
‘everyone has the right to seek and enjoy in other countries asylum from persecution’. This
means that all people fearful of persecution in one country – such as Syrians fleeing conflict –
have the right to asylum in another. Asylum, understood as ‘the protection that a State grants on
its territory or in some other place under the control of certain of its organs to a person who
comes to seek it’, is a well-known institution in international law with well-established historical
roots in state practice. It is important to note that the type of asylum or legal status accorded to
refugees is crucial to their future and well-being, setting out the rights and obligations pertaining
to people who have been forced to leave their country. It essentially determines what type of
basic rights they will be guaranteed. It governs access to essential services such as healthcare and
education; the right of movement within a host country; rights to residency; and rights to legal
employment.

While many of these rights – such as the right to healthcare and education – are considered to be
fundamental human rights in and of themselves, the enjoyment of these vital rights in practice is

5
https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?article=1328&context=honorstheses

10 | P a g e
almost entirely dependent on the level or recognition afforded to those seeking asylum in the
relevant receiving country. Often, the level of legal protection afforded within receiving
countries falls well short of what is required or recommended by international law, with
markedly negative ramifications for the degree to which refugees will be protected and assisted
during their stay in a receiving country: there are a number of studies proving the direct link
between a limited legal status and the high risk of abuse and exploitation.

UNITED NATION HIGH COMMISONER FOR

REFUGGES (UNHCR):

The United Nations established the UN High Commissioner for Refugees as a supranational
body whose intent was purely humanitarian based. With the adoption of the Universal
Declaration of Human Rights by the UN General Assembly in 1948, the foundation for creating
a refugee protection regime that was international and thus unbiased was laid. Now, protection of
refugees was recognized by the UN as a human right. Articles 13, 14, and 15 help to establish an
international basis for the protection of refugees:

Article 13: 1. Everyone has the right to freedom of movement and residence within the borders
of each State.
2. Everyone has the right to leave any country, including his own, and to return to his
country.

Article 14: 1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-
political crimes or from acts contrary to the purposes and principles of the United
Nations.

Article 15: 1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change
his nationality.

11 | P a g e
Following the Declaration of Human Rights, the General Assembly of the United Nations
created the High Commissioner for Refugees (UNHCR). In the 1950 Statute of the Office of the
United Nations High Commissioner for Refugees, it is specifically stated that:

The work of the High Commissioner shall be of an entirely nonpolitical character; it shall be
humanitarian and social and shall relate, as a rule, to groups and categories of refugees.6

This statute also established how this international organization would work with individual
states to help ensure the protection of refugees. Various ways in which the Statute calls upon
governments to do this entail becoming parties to international conventions protecting refugees,
admitting refugees to their territories, assisting in voluntary repatriation, promoting assimilation
of refugees, and providing the High Commissioner with information such as the number of
refugees in their territory, their condition, and laws individual states create concerning refugees.

1951 CONVENTION AND 1967 PROTOCOL

The controlling international legal tools on refugee law are the 1951 Convention relating to the
Status of Refugees (1951 Convention) and the 1967 Optional Protocol relating to the Status of
Refugees (1967 Optional Protocol). While the scope of the 1951 Convention is limited solely to
those Europeans who became significant refugees as a result of events occurring before January
1951, the 1967 Protocol required signatories to apply the substantive provisions of the 1951
Convention to all refugees falling under the definition of the latter but without any limitation of
date, making the 1951 Refugee Convention applicable globally. In particular, the Convention
establishes the definition of a refugee as well as reaffirming one of the principal pillars of this
body of law, the principle of non-refoulement, previously discussed. It also established the
Office of the United Nations High Commissioner for Refugees (the UNHCR). This body’s main
responsibilities are to provide international protection to refugees and, by assisting Governments,
to seek “permanent solutions for the problem of refugees”.

Its protection functions specifically include promoting the conclusion and ratification of
international conventions for the protection of refugees, supervising their application and
proposing amendments theret ; signatories to the Convention are required to permit the UNCHR
6
http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-
9780199652433-e-021

12 | P a g e
to operate within their borders to support refugees. Even those countries which are not
signatories usually co-operate with the UNHCR because of the humanitarian assistance it
provides; it is the main international organization assisting refugees in Lebanon, Jordan, and
Turkey.

It should be emphasized that the Convention has a considerable legal, political and ethical
significance beyond its specific terms. From a legal perspective, it provides the basic guiding
standards on which international refugee protection should be carried out. From a political one, it
provides a truly universal framework which states can utilize in cooperating to share the burden
resulting from forced displacement.7 Finally, it has ethical significance, in that it constitutes a
unique declaration by the signatories of their commitment to protect and uphold the rights of
some of the world’s most vulnerable people.

Together, this means that international legal obligations do not disappear simply because a
refugee has not been able to reach the territory of a particular state.

In the case of the Syrian refugee crisis, most states today have in practice avoided many of their
responsibilities under the international refugee protection regime by taking steps to stop refugees
from crossing into their respective territories, and claiming that they do not have jurisdiction
over or responsibility for refugees in the territories of others. Adopting the non-entree approach,
whereby refugees are simply not allowed to enter and therefore trigger a particular state’s
jurisdiction, has allowed most states to formally stay within the realms of refugee law while
simultaneously not practically fulfilling treaty obligations. This argument does not stand up
under expert scrutiny. Refugee responsibility and jurisdiction does not stem solely from
geographic engagement of the refugee with the state’s territory: the institution of asylum was
simply not structured that way, and the normative obligation to protect is not conditional.

Some important articles of the 1951 Refugee Convention to my analysis include Article 31
concerning how refugees arrive in the country they apply for asylum, Article 32 concerning
expulsion and the right to a legal process to determine refugee status, and Article 33 which
prohibits refoulement, or the return of a refugee to the country where they face a threat of
persecution.

7
http://www.democraticprogress.org/wp-content/uploads/2016/06/Refugees-and-Conflict.pdf

13 | P a g e
The key provisions of the Convention will be briefly outlined below.

Naturalization and Assimilation

Under the terms of the 1951 Convention, States must as far as possible facilitate the
naturalization and assimilation of refugees. At a minimum, States are obligated to provide legal
assistance, including the necessary documents, for refugees to secure asylum and official refugee
status. Those seeking refugee status and those who have gained it must be granted freedom from
penalties for illegal entry (Article 31) and freedom from expulsion (Article 32), and they must
enjoy the same access to the Courts of law in the State as nationals of that state.

Access to Basic Services

The convention also requires that refugees are afforded with elementary education (if of the right
age), and are given the same assistance in regards to public relief and assistance as is accorded to
nationals of the receiving country. This means that states are obligated to provide public relief –
encompassing basic food, water, shelter, and medicine – to asylum seekers. Given that the right
of all people to those resources which are necessary to survive is fundamental, this obligation can
be understood to be intrinsic to international human rights law. Special protection is also
afforded to child refugees; the 1990 Convention on the Rights of the Child requires that States
must take all appropriate measures to ensure that children either seeking refugee status or who
have secured refugee status are accorded all of the rights set forward in the 1990 Convention.
These include protection from abuse, child labour, and separation from the family. Employment
Under the terms of the 1951 Convention, refugees are to be accorded at least as favorable
treatment as that given to aliens resident in the receiving states in regards to employment law.
That is, if nationals of another state may secure legal employment within the state, refugees
should be able to do so as well. In addition, the 1951 Convention states that refugees are subject
to the same protections that nationals are provided with in regards to employment law and legal
recourse if they are exploited or abused. It also recommends that states take action to facilitate
the economic participation of refugees within the labour force.

PRINCIPLE OF NON-REFOULEMENT

14 | P a g e
One of the most fundamental refugee rights is the principle of nonrefoulement. Article 33 of the
1951 Refugee Convention states that State parties must not forcibly expel or return (refouler)
any person to a situation where their life or freedom may be threatened on account of their race,
religion, nationality, membership of a particular social group or political opinion. The principle
of non-refoulement has become part of customary international law and is considered to be
binding on all states, even those which have not signed the Refugee Convention.8 It is considered
both an inviolable part of international customary law and a key provision of the 1951
Convention Relating to the Status of Refugees (discussed below). Non-refoulement means non-
return: states cannot return foreign nationals to territories where they might be subjected to
torture, inhumane or degrading treatment, or where their lives and freedoms might be at risk. The
principle of non-refoulement reflects the commitment of the international community to ensure
the enjoyment of basic human rights including the right to life, to freedom from torture or cruel,
inhuman or degrading treatment or punishment and to liberty and security of person. The logic
behind this principle is evident - these and many other rights are threatened when a refugee is
returned to persecution or danger. Some of the most important international human rights
instruments explicitly prohibit refoulement. Both the Geneva Convention relating to the Status of
Refugees and the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment possess a prohibition of refoulement. Article 33 of the
Refugee Convention stipulates that “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 on account of his race, religion, nationality, membership of a particular social
group or political opinion.” Similarly, Article 3 of the Convention against Torture states that “No
State Party shall expel, return (“refouler”), or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture.”

REALISTIC SOLUTIONS TO THE SYRIAN

REFUGEE CRISIS

8
https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=1748&context=ilr

15 | P a g e
It is clear that Europe seems to be much more restrictive with refugee rights when compared to
Latin America. This restrictive nature is not conducive to the current Syrian Refugee Crisis, as
their policies have a better chance of exacerbating the problem. However, there are realistic
solutions that Europe can initiate that could help mitigate the issues.

THE DISCRETIONARY CLAUSES IN THE DUBLIN

REGULATIONS

The State Sovereignty Clause in the Dublin Regulations allows for States to consider claims that
otherwise would not be their responsibility.9 Article 17(1) of the Dublin Regulations states:

By way of derogation from Article 3(1), each Member State may decide to examine an
application for international protection lodged with it by a third-country national or a stateless
person, even if such examination is not its responsibility under the criteria laid down in this
Regulation.

With the Syrian Refugee Crisis in full swing, Germany was effectively able to exercise its
sovereignty and set aside many of the provisions listed in Article 3 of the Dublin Regulations.
With Germany being more of an inland state during this Syrian Refugee Crisis, the Dublin
Regulations could essentially preclude Germany from accepting refugee applications as
Germany could easily deem any applicants transferrable to respective border states. However, in
conjunction with Article 17 of the Dublin Regulations, Germany opened their doors by declaring
all Syrian asylum-seekers welcome to remain in Germany – no matter which EU country they
had first entered. Essentially suspending their responsibilities found in Article 3 of the Dublin
Regulations, Germany became a safe haven for a multitude of refugees as they revoked
expulsion orders and no longer required new refugee arrivals to fill out a questionnaire in order
to determine which European country they first entered in. While eventually the influx became
an issue, Germany’s actions showed the type of discretion that is available. Thus, if the rest of
Europe followed this example, it would allow these refugees to find asylum in a variety of states
and prevent the collapse of the asylum structures in border states. Article 17 of the Dublin

9
Steven Peers, The Refugee Crisis: What should the EU do next?, EU LAW ANALYSIS (Sept. 28, 2015),
http://eulawanalysis.blogspot.com/2015/09/the-refugee-crisis-what-should-eudo.html.

16 | P a g e
Regulations also allows for states to derogate from responsibility based on humanitarian and
compassionate grounds.

It is clear that states have a lot of freedom when applying these discretionary clauses within the
Dublin Regulations. Europe has a clear respect for sovereignty, and often places it above
fundamental rights. So while these discretionary clauses can act as release valves in extreme
situations and appear to bolster support for fundamental rights, the fact that they can only be
activated by the choice of a Member State still shows its reverence for sovereignty. Essentially,
these discretionary clauses are useless unless the States alter their perspectives and begin to
utilize them.

THROUGH IMPLEMENTATION OF VOLUNTARY

REPATRAITION PRACTICE

One of the more fundamental actions that should be taken is to reassess the balance between
sovereignty and fundamental human rights. As noted previously, the European instruments
addressing human rights make no specific reference to voluntary repatriation. In assessing what
exactly voluntary repatriation is, it is important to understand what exactly “voluntary” entails.
Voluntariness must be viewed in relation to the conditions in the country of origin as well as the
situation in the country of asylum.10

Voluntariness means not only the absence of measures which push the refugee to repatriate, but
also means that he or she should not be prevented from returning, for example by dissemination
of wrong information or false promises of continued assistance. In certain situations economic
interests in the country of asylum may lead to interest groups trying to prevent refugees from
repatriating.

The best way to promote voluntariness is by providing guaranteed rights to the refugees and
allowing them to settle. Once this occurs, their decision of repatriation is more likely to be
voluntary. An open dialogue is necessary to help refugees make an informed decision. This
includes dialogue with the refugees as a collective, and dialogue with the country of origin.
Providing information campaigns to the refugees will allow them to fully understand the
10
https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=1748&context=ilr

17 | P a g e
conditions of their country of origin, and then make informed decisions as to their return.
Essentially, applying voluntary repatriation into the European system would require these
respective states to provide enough guaranteed rights to these refugees so that they do not feel
any pressure to leave. This extra responsibility would then help lead to more cooperative efforts
among States, which would then provide an easy transition into creating effective resettlement
programs.

ENCOURAGING RESSETLEMENT PROGRAMS

One of the suggestions in the Brazil Declaration and Plan of Action in instituting resettlement
programs is to identify current priority situations, and then demonstrate solidarity with
international humanitarian crises through either the use of humanitarian visas or resettlement
quotas. Interestingly enough, the EU did exactly this. In response to the refugee Crisis, EU
ministers pushed through a controversial plan with its goal to relocate 120,000 migrants across
the European continent.11 However, it was met with much opposition, as it was passed on a
majority vote rather than a unanimous decision. Hungary, Slovakia, Poland, and the Czech
Republic refused to accept this resettlement quota plan and argued that “the numbers of refugees
should be controlled by each individual EU member state.

While attempts were made to try and institute a program wherein refugees would be able to
exercise their rights, the focus on sovereignty effectively dampened these efforts. It is
understandable that security issues and resource availability is a contributing factor to feelings of
opposition, but such an attitude ignores the reality of the situation. These border states also have
finite resources. Without proper quota distribution, multitudes of refugees will flood the border
states of the EU, and the sheer numbers will dismantle the efficacy of the asylum procedures in
those states. Thus, an effective solution would be to establish a fund used to assist in refugee
efforts. The Brazil Plan suggests exploring the possibility of establishing a voluntary
Cooperation Fund to strengthen the ‘Solidarity Resettlement’ programme with contributions
from the international community. Taking such a step would eliminate the fear of resource
depletion. Cooperation is a must in order to mitigate the crisis. Much like the Brazil Plan throws

11
Migrant Crisis: EU Ministers approve dispute quota plan, BBC NEWS (Sept. 22, 2015),
http://www.bbc.com/news/world-europe-34329825.

18 | P a g e
its support to Ecuador, since it is the country with the largest refugee population, the states in
Europe must do the same and support the EU border states.

CONCLUSION

19 | P a g e
The key problem preventing the effective addressing of the Syrian refugee crisis, identified by
this paper, is the fact that the existing national legal frameworks in those countries in reception
of the overwhelming majority of Syrian refugees do not incorporate many of the basic
obligations of international law in regards to refugees, in part because neither Turkey, Lebanon,
or Jordan have ratified both the 1951 Refugee Convention and the 1967 Additional Protocol. In
short, people fleeing conflict and persecution in Syria have the right to asylum, yet they are
unable to obtain it in any of the three countries surveyed here. This has reduced refugees to a
state of dependency, forcing the large majority into reliance on aid and irregular employment
(including the growing problem of child labour) to sustain themselves, and has meant that
refugee communities still exist as marginalized minorities as yet unintegrated into their receiving
countries. The situation is concerning both because it perpetuates the human rights abuses of
refugees and because it perpetuates and increases the risk of conflict. Those fleeing the war in
Syria are currently facing a legal paradox. While they satisfy the definition of the 1951 Refugee
Convention, they are not recognised as refugees in the context of the international legal
framework for refugee protection because the current main host countries are not part of that
legal regime. Instead, the response of the international community has been characterised as
‘limited burden-sharing’, and has focused more on aid money than on offers of asylum. Yet as
has been demonstrated by the poverty and dependency of the majority of refugees in Lebanon,
Jordan, and Turkey, humanitarian aid on its own is not capable of acting as a long term
development tool. Having examined relevant policy and laws it has become clear that
irrespective of how much donor aid is allocated to each country, the restrictive laws of the three
main receiving countries make opportunities for refugees to become self reliant and integrate
into the local population very hard to come by. The inability of refugees to obtain formal refugee
status, in particular, means that not all of their protection needs can be met. This means that
Turkey, Lebanon, and Jordan are unlikely to be able to provide sustainable solutions to the crisis
without significant international help. Moreover, the crisis is unlikely to end soon, and the
possibility of safe repatriation of refugees to Syria appears to be distant; the ceasefire negotiated
in March 2016 is temporary and does not apply to a range of armed groups. This makes
confining refugees to these countries entirely counter-productive, allowing for the Syrian refugee
crisis to continue growing and posing significant risks to regional and consequently international
stability. Instead, the burden-sharing of asylum-seekers has been offered as a way in which a

20 | P a g e
durable solution to the problem may be developed. As the refugees we surveyed constantly
reminded us, people fleeing conflict in Syria, many of whom are marginalized and desperate on
the fringes of society, are seeking to live normal lives and establish a place for themselves in new
communities.

21 | P a g e