Mitigating the Conflict of interest: are There Any Good Arguments for States NOT to Acceptrefugees

Tekleweini Okubamichael 

The world is divided into sovereign states, each with legitimate authority over its territory and  its people. Each state has the obligation to look after its people, and to exercise its right to run  the country however it pleases.1 Taking this into account, every human being is presumed to  have citizenship in a given country. While each state is obliged to respect, protect, and fulfill  its citizens’ human rights, this, however, is not always the case. States do fail to foresee their  responsibility to their citizens. In this situation, the international community is expected to step  in when a country fails to fulfill its obligations.2 Hence, individuals who lose the protection of  their state of origin or who suffer human rights violations are offered protection by being given  a place in other safe states. 

More recently however, many receiving states are citing several concerns or arguments to  justify their decision not to accept refugees. This includes sovereignty, immigration policies  and ideals voted for, national security, and limited resources. The arguments may differ from  one country to another, as what is a reason/s for one state may not be the reason/s for the other. 

From these concerns, national security and sovereignty are the prominent arguments that states  refer to when responding to why they do not want to accept refugees.3 

Sovereignty, of course, enables states to freely determine who is eligible to enter and reside in  their territory.4 This includes promulgating of laws to extensively screen, determine, admit, and  resettle refugees in need of protection. States also give priority to their national security as far  as accepting refugees is concerned. Especially after the November 2015 attacks in Paris, in  which linkages were made between refugees and terrorists, callsfor suspension or enhancement  of refugee programs rang out from a number of states.5 Thus, despite the moral dilemma that  refugees pose, some states have been reluctant to accept refugees, hence fiercely guards their territory.6 

States are also free to take screening measures that they deem are effective to protect their  national security and to manage their borders in a protection-sensitive way without refusing  entry to those who seek asylum and those who are in need of protection under international  human rights and refugee laws.7 The protection should include the right to enter, the right to  stay, the right not to be deported, and the recognition of the fundamental rights of the  individual.8 

Other reasons that states claim are the limited resources of housing, schools, health care  facilities, and of employment. Indeed, refugees affect the states that they live in. They occupy  property, engage in local commerce, send their children to local schools and utilize local  services such as hospitals and law enforcements.9 This is why states, when accepting or  supporting refugees either financially or through resettlement, want to balance with their  domestic policies and resources, as the entire burden for maintaining the safety and well-being  of the refugees shifts to them.10 In addition, states are of the view that the quality of care and  services they provide to their respective citizens is likely to be affected negatively if they keep  accepting refugees. Consequently, the inability of citizens to get the public services they are  entitled creates a fear among the leadership that widespread civil unrest will trigger a popular  uprising against their authority. 

Nevertheless, are these arguments convincing enough for states not to accept refugees? 

There are different international sources of law that establish States’ obligations towards refugees. These obligations could emanate from treaty laws, customary international laws, and  case-laws of international and national courts. According to Article 14 of the 1948 Universal  Declaration of human rights, “everyone has the right to seek and enjoy in other countries  asylum from persecution.”11 Also, as clearly stated in article 12(2) of the CCPR, the receiving  States are obliged to admit and protect asylum seeker.12 Here, distinguishing asylum seekers  from refugees is not as easy task as it looks; because there is no clear line. A person does not  become a refugee because of recognition, but is recognized because he/she is a refugee.13 

Therefore, throughout my arguments, I have used “refugees” and “asylum seekers” interchangeably.  

The only mechanism we can reconcile the sovereignty claim and refugee protection in the  context of the right to asylum is the principle of non-refoulement.14 This principle is the limit  for the receiving state not to revoke its sovereign right and return refugees to the country where  they fled from. First developed as international customary law, the non-refoulement principle  is now enshrined in the 1951 Refugee Convention and other documents of International Human  Rights Law. That is to say that, this principle binds not only the states that accede the Refugee  Convention and/or its Protocol but also those states which are not a party to the same  international document and its protocol. 

See also, albeit somewhat more cautious on this issue by merely linking Article 18 to the Qualifications  Directive, the European Union Agency for Fundamental Rights’ and the European Court of Human Rights’  Handbook on European law relating to asylum, borders and immigration (Publications Office of the European  Union 2016), 45. 

Therefore, a person who fled from his/her country of origin due to a well-founded fear of  persecution is entitled to the right of asylum. The destination States, on the other hand, are  duty-bound to process that person’s request for asylum and not to return him/her to the country  where he/she fled from.15 The non-refoulement principle, including the prohibition of expulsion  of refugees, does not depend on variables like sovereignty and the economic ability of the  receiving state.16 

Although what amounts to accepting refugees is controversial, the host state is still compelled to accept refugees and refrain from expelling or deporting asylum seekers within its territories. Therefore, the sovereignty argument of states not to accept refugees is somewhat a weak argument. If states are legally obliged to refrain from extraditing, expelling, or deporting refugees and asylum seekers to countries where they could be persecuted, then it’s safe to  conclude that states, whatever arguments they may have, are duty-bound to accept refugees  into their territories without having to grant them asylum.17 

True that the host state may expel or return refugees if they constitute a threat to its security or  pose a danger to its communities.18 This may be considered as an exception to the Non refoulement principle. Yet, the exception is limited only to refugees who constitute danger to  the security and community of the host country. The other peaceful refugees are still entitled to  reside in the host country so long as the reason that forced them to seek refuge persists to exist.  Likewise, as stipulated under Article 3(1) of the UN Convention Against Torture, no state party  shall expel, return or extradite a person to another state where there are substantial grounds for  believing that he/she would be in danger of being subjected to torture. Therefore, neither the  security of the state, nor the individual’s behavior can serve as a justification for all types of  obligatory departures to such countries.19 

As stated under Article 31 of the 1951 Refugee Convention, states are obliged not to impose  penalties on refugees who fled directly from a country where their lives or freedoms are  threatened. Besides, according to Article 7 of the same Convention, member states are  responsible to accord refugees the same treatment as they do to other aliens.20 States are also  duty bound, under international human rights law, to provide protection to all persons in their  jurisdiction with no reference of their status. It shouldn’t, however, be assumed that the state’s  sovereignty is undermined, as they still hold the discretionary power to decide to whom to accord the right to permanent or temporary residence, to permit or decline the right to work, or  confine refugees to camps, depending on the international assistance they may get.21 

Conclusion 

To conclude, states cite their sovereign rights to determine whom to admit to its territory, their  national security, and capacity to provide resources when justifying their decision not to accept  refugees. These arguments, however, are not convincing enough as states are still obliged  towards refugees and asylum seekers. This claim is protected in various instruments and  sources of international law. The 1951 Refugee Convention, being the core protection  instrument, there are also human rights and customary international laws which impose legal  obligation on states. Moreover, the obligations of states for refugee acceptance and protection  closely relates to the efforts of the international community to restore international peace and  security. Therefore, there are no good arguments for states not to accept refugees, as doing so  would negatively affect the international peace and security.  

Reference(S): 

Books and Academic Journals 

• Parekh, Serena. No Refuge: Ethics and the Global Refugee Crisis. Oxford University  Press, 2020. 
• Morgenstern, F. “The Right of Asylum.” British Yearbook of International Law. 
• Gil-Bazo, María-Teresa. “Refugee status, subsidiary protection, and the right to be  granted asylum under EC law.” New Issues in Refugee Research, no. 136, Nov 2006. 
• Fandl, Kevin J. States’ Rights and Refugee Resettlement. (Available via SSRN). 
• Edwards, Alice. Displacement, stateless, and questions of gender equality and  convention on the elimination of all forms of discrimination against women.  Nottingham University Press, 2009. 
• Dewansyah, Bilal and Handayani, Irawati. “Reconciling Refugee Protection and  Sovereignty in ASEAN Member States: Law and Policy Related to Refugee in  Indonesia, Malaysia and Thailand.” Central European Journal of International and  Security Studies 12, no. 4 (2018). 
• Einarsen, T. “Drafting History of the 1951 Convention and the 1967 Protocol.” In  Andreas Zimmermann (Ed.), The 1951 Convention Relating to the Status of Refugees  and its 1967 Protocol: A Commentary. Oxford University Press, 2011. 
• Nicholson, F. and Twomey, P. Refugee Rights and Realities: Evolving International  Concepts and Regimes. Cambridge University Press, 1999. 
• Weissbrodt, David and Hortreiter, Isabel. “The Principle of Non-Refoulement: Article  3 of the Convention Against Torture and Other Cruel, Inhumane or Degrading  Treatment or Punishment in Comparison with the Non-Refoulement Provisions of  Other International Human Rights Treaties.” Buffalo Human Rights Law Review 5  (1999). 
• Goodwin-Gill, G.S. and McAdam, J. The Refugee in International Law. 3rd edition,  Oxford University Press, 2007. 

International Conventions and Treaties 

• 1948 Universal Declaration of Human Rights (UDHR): Specifically Article 14. 
• 1951 UN Convention Relating to the Status of Refugees: Specifically Articles 7, 31,  and 33. 
• 1967 Protocol Relating to the Status of Refugees. 
• International Covenant on Civil and Political Rights (ICCPR): Specifically Article  12(2). 
• UN Convention Against Torture (CAT): Specifically Article 3(1).
• European Convention on Human Rights (ECHR): Specifically Article 1. International Reports and Official Documents 
• United Nations Security Council: The Secretary General’s Report pursuant to Security  Council Resolution 2312 (2016), 7 September 2017 (Doc S/2017/761). 
• European Union Agency for Fundamental Rights and the European Court of Human  Rights: Handbook on European law relating to asylum, borders and immigration.  Publications Office of the European Union, 2016. 
• UN General Assembly: Resolution 217 (III), International Bill of Rights, 10 December  1948. 
• Human Rights Committee: General comment no. 31 [80], The nature of the general  legal obligation imposed on States Parties to the Covenant, (CCPR/C/21/Rev.1/Add.  13), 26 May 2004. 
• ICRC (International Committee of the Red Cross): Note on migration and the principle  of non-refoulement.

1 Serena Parekh, No Refuge: Ethics and the Global Refugee Crisis, (Oxford University Press, 2020), at 82. 

2Ibid. 

3Ibid. 

4 F. Morgenstern, The Right of Asylum, (British Yearbook of International Law), at 327.  5Ibid. 

6Ibid Serena, at 78. 

7 The Secretary General’s Report pursuant to Security Council Resolution 2312 (2016),

7 September 2017, UN  Doc S/2017/761, para 54.  

8 María-Teresa Gil-Bazo, ‘Refugee status, subsidiary protection, and the right to be granted asylum under EC law’, New Issues in Refugee Research no 136, Nov 2006, available at http://www.unhcr.org/455993882.pdf, 8.

9 Kevin J. Fandl, States’ Rights and Refugee Resettlement, (available at: https://ssrn.com/abstract=2764642) 10 Serena, ibid at 1. 

11 Article 14 of the 1948 Universal Declaration of Human Rights. See also UNGA Res 217 (III), International  Bill of Rights, 10 December 1948.  

12 Article 12(2) of the International Covenant on Civil and Political Rights (CCPR). 

13 Alice Edwards, Displacement, stateless, and questions of gender quality and convention on the elimination of  all forms of discrimination against women, (England: Nottingham university press 2009) 14.

14 Bilal Dewansyah, Irawati Handayani. Reconciling Refugee Protection and Sovereignty in ASEAN Member  States: Law and Policy Related to Refugee in Indonesia, Malaysia and Thailand. Central European Journal of  International and Security Studies 12, no. 4: 473–485. (available at: https://ssrn.com/abstract=3308116)

15 T Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol, In Andreas Zimmermann, The  1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University  Press 2011). See also F Nicholson and P Twomey, Refugee Rights and Realities: Evolving International  Concepts and Regimes (Cambridge University Press 1999) 81,82.  

16 Ibid. 

17 Human Rights Committee General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13 26 May 2004, para 10. As to the ECHR see the ECtHR’s Guide on Article 1 of the European Convention on Human Rights, available at https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf. 

18 David Weissbrodt and Isabel Hortreiter, “The Principle of Non-Refoulemnt: Article 3 of the Convention  Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment in Comparison with the  Non-Refoulement Provisions of Other International Human Rights Treaties’ (1999) 5 Buffalo Human Rights  Law Review 1. 

19 Article 31 of the 1951 UN Convention Relating to the Status of Refugees. 

20 Article 7 of the 1951 UN Convention Relating to the Status of Refugees.

21 G S Goodwin-Gill J McAdam, The Refugee in International Law (3rd edition, Oxford university Press 2007),  359.