Can international law protect Syrian refugees from Non-Refoulement? The debatable supremacy of Jus cogens

With over six million Syrians internally displaced and more than four million seeking refuge abroad, the Syrian refugee problem has been growing every day and is one of the Middle East’s main problems. Nonetheless, the question of the future of these refugees is a question asked by many but answered by few. The UN high commissioner for refugees, Antonio Guterres, stated that Syria’s great tragedy has become “a disgraceful humanitarian calamity with suffering and displacement unparalleled in recent history”(Miles, 1). The majority of Syrians refugees have remained in the four key countries surrounding Syria: Egypt, Lebanon, Turkey and Jordan. There are approximately 134, 000 in Egypt, 1 million refugees in Lebanon, 1,450,000 in Turkey, and over 622,00 in Jordan (Achilli,32). The high number of refugees endangers Syrian refugees from refoulement, the act of states forcing refugees to return to their original state, which is considered as jus cogens. Nonetheless, states must comply with the legal requirements pertaining to refugees under international law that prohibit states from expelling refugees. Thus when examining the refugee problem of Syria and its legality, two lingering question accrue: can International Refugee law protect Syrian refugees from non-refoulement? And is jus cogens a non-derogable principle? International law is not silent in the case of refoulement: there is a substantial body of law that exists, both at the universal and regional levels, that endeavours to address this predicament. To answer the previous questions, the body of law concerned with non-refoulement is examined as well as the contending views of the debatable supremacy of jus cogens. In addition, analysis of the Rwandan case is examined to see if international law was successful in preventing previous states from skirting the international law principle. Finally, a detailed analysis of the current legality and situation of Syrian refuges in the main key countries that shelter them is conducted to predict the future danger of the Syrian refugees in the case of refoulement. This blog post concludes that although international law has constructed a set of laws to protect refugees from refoulement it has not stopped states from skirting the international law principle and will probably not be able to save the Syrian refugees from non-refoulement. I say this because of two reasons; first of all international law is ineffective because it is has no consequence and no clear parameters; consequently, it is breached regularly by states and second of all because, jus cogens norm is not respected or does not exist at all. Screen Shot 2015-05-20 at 10.38.47 PM

What is Non-refoulement?

Non-refoulement is “described as the foundation of the foremost international legal instrument relating to refugees” and thus when discussing the future of Syrian refugees one cannot ignore such a principle (Rodger, 2). Non-refoulement is the right against forced return of refugees who have fled violence in their state of origin. It prohibits the transfer of anyone to a place were they could be at risk of persecution, as is the case for refugees from Syria. The breach of this principle can either occur through forcible returns to the country of origin, or indirectly through refusing entry or access to fair and satisfactory asylum procedure (Sanderson, 787). Nonetheless, international law abundantly addressing such a principle which can be found under the 1951 Geneva Convention in Relations to the Status of Refugees; the 1984 Convention Against Torture (CAT) and its 1967 protocol; the International Covenant on Civil and Political Rights (ICCPR); and the Third and Fourth Geneva Conventions (“Non-Refoulement Under Threat”, 1-27). Regional instruments that reaffirm the principle of non-refoulement are also the 1966 Principles Concerning Treatment of Refugees, 1967 UN Declaration on Territorial Asylum and the 1969 Organization of African Unity Convention (OAU). Art 33 of the 1951 Convention in relations to the Status of Refugees states 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.” Article 3 of 1984 Convention Against Torture says that ‘no State Party shall expel, return 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’ (Sherlock, 1). Article 7 &14 of the ICCPR protect against torture when dealing with cases of dismissal and extradition (“UNHCR Note on the Principle of Non-Refoulement”, 1). This is a broader protection than the 1951 Convention in that it is an absolute right. In addition, both the Third (Article 12) and Fourth (Article 45) Geneva Conventions contain explicit prohibitions of refoulement and are considered as customary law. Moreover, on a regional scale the OAU article 2(3) stating that no person shall be declined at the frontier, returned or dismissed if his existence, physical integrity or freedom is threatened (“Non-Refoulement Under Threat”, 1-27). Article 3(1) of the UN Declaration on Territorial Asylum states that: “No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.” Already Egypt is a party to the 1951 Refugee Convention and its 1967 Protocol, as well as the 1967 OAU Convention. Lebanon and Turkey have passed domestic laws governing the definition and protection of asylum seekers and refugees. Turkey is also state party to the 1951 Refugee Convention and all three key receiving states are parties to the ICCPR and the Convention Against Torture (Sanderson, 785). In addition, given the fact that non-refoulement- according to UNHCR executive committee conclusion in 1996- is non-derogable (which implies that it is a norm of jus cogens or a privileged species of customary international law which is supreme over all other formal sources of international law) (Farmer, 15). This means that Arab states are obliged to respect the principle of non-refoulement and not forcibly repatriate refugees. Therefore, at first glance it is obvious that international law does lay down provisions to protect Syrian refugees from refoulement.

Debatable supremacy of Jus cogens: 

Assuming that non-refoulement is indeed a jus cogens norm, with the regard to the supremacy of Jus cogens, there are two sides of the debate. The first one shines an affirmative light presented through work of Jean Allain author of “The Jus cogens Nature of Non-refoulement”, who states that jus cogens is effective and is regarded as higher norm from which no derogation is allowed. The second side of the debate is presented through the work of Anthony D’Amato who states that Jus cogens norm is not real. Both are needed to achieve understanding of the current issue. Jean Allain states in his article that the notion of jus cogens is expressed in international law through articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties, which says that it “is accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted”. He also implies that “ in no circumstance may a state legally transgress the norms of jus cogens, for they are considered norms so essential to the international system that their breach places the very existence of that system in question” (Allain, 535). Furthermore, he states that jus cogens limit the actions and interactions of states on the international plane and that “not meeting the threshold of jus cogens means that individuals can challenge the actions of state and hold them accountable”(Allain, 557).  Anthony D’Amato, on the other hand, implies in his article, “It’s a bird. It’s a plane, its Jus cogens” that he does not believe that such a theory exists. He says that people have succumbed to its theatrical power, which has no substantive content. He says there is no way to define what categorises a norm as jus cogens and that it has no effect as it has no utility apart from its rhetorical value. Moreover, he asks several questions such as: how does a purported norm of jus cogens arise and once it arises how can international law change it or get rid of it (D’Amato, 1). To him jus cogens theory is inconceivable and can be retracted at any time. Thus, what good is this super norm if it can be retracted and not respected? Both jus cogens and international law have proven to be ineffective in protecting refugees from refoulement, as nations were able to get around their international obligations because the parameters of the principle of non-refoulement under international law are not clearly defined and are without consequence.

Previous case study of Non-Refoulement in Rwanda:

In the case of Rwanda, its people have encountered non-refoulement on a large scale two times in history. The first was in 1955, when the Tanzanian government, which was hosting 500,000 refugees at that time “closed its borders to more than 50,000 Rwandan refugees who were fleeing violence” (Boed, 2). The second time was in 1996 when Zaire, now Democratic Republic of Congo, returned 500,000 refugees using military force. In both cases, it was a result of the unclear parameters of the principle of non-refoulement. The 1951 Convention does not clearly set out how states are to ascertain whether an individual meets the definition of refugee. As a result, the governments of Tanzania and Zaire crafted asylum regulations and a definition of refugees based on their disparate resources and national protection concerns. The Tanzanian government for example stated that it was unable to accept more “on account of the dangers posed to the environment, regional tension and, probably above all, national security” (D’Orsi, 250). It has been argued that UNHCR’s acquiescence to the repatriations during 1955 and lack of effectiveness prompted the later repatriations in 1996 as nations saw that there were no consequences to the breach of the principle of non-refoulement. “The international community remained reasonably silent during these mass repatriations, which suggests that the principle can be violated with no adverse consequences”(Howland, 73). Hence, due to the law’s ineffectiveness, vagueness and lack of a clear and detailed provision to hold accountable violators of the law and to amend an unlawful situation, it is clear that international humanitarian law failed to protect refugees in the case of Rwanda and will probably fail to protect those in Syria. It is obvious that the legal prohibition against refoulement only serves as a guideline and that jus cogens as it may appear, seems to have no utility apart from its rhetorical value.

Detailed analysis of the Syrian case; Egypt, Lebanon, Turkey and Jordan:

It is evident from the current situation that history might be forced to repeat itself. The four key actor states harboring refugees will neither respect the treaties they have signed (as they can easily find loopholes or escape responsibility without consequences) nor will they respect the principle of non-refoulement. States that have signed might invoke ‘fundamental changes of circumstances’ to withdraw from the 1951 Convention, Justifying such an argument with national security, regional tensions, environmental dangers or using’s the same justification as the Australian Prime Minister during its crises in 2008 stating “our capacity to take unauthorized arrivals is at breaking point” (Rodger, 4). Nonetheless, each of these States has already responded to the fleeing Syrians with generosity but given that these are mainly struggling third world countries with a profusion of problems, the situation will undoubtedly end poorly. It would be naïve to expect Arab generosity for much longer, the situation in hand is obviously building up to refoulement; in some instances it has already happened. Hospitality is limited and is at a breaking point. Screen Shot 2015-05-20 at 11.12.20 PM

Egypt:  In the case of Egypt, quotas have already been administered to limit Syrians from entering borders in addition to closing the borders altogether. The Egyptian government is calling Syrian refugees illegal immigrants, although the majority of Syrian asylum-seekers fall within the refugee convention definition. Since July 2013 the “government of Egypt began restricting visa renewals and requiring that all Syrians obtain a visa in order to enter Egypt and to obtain a security clearance from the Egyptian National Security Service (“ Protecting Syrian Refugees”, 20). Although, Egypt is a party to 1951 Refugee Convention and its 1967 protocol, it has not yet promulgated relevant internal asylum regulations or maintained the procedures or institutions vital to complying with their obligations under the Convention. Even worse, there are many cases of forcible return of refugees, claiming national security threats or immigration violations, but the government denies all implications of such cases (Fotiadis, 1).

Lebanon: The government of Lebanon officially regards the Syrian refugees in Lebanon as “displaced individuals.” The nonexistence of a formalized strategy of protection makes the request of non-refoulement exceedingly unclear, as the government does not lawfully recognize the Syrians as refugees in demand of protection (“Protecting Syrian Refugees”, 11). Nonetheless, the provisions of the 1962 Lebanese law are restricted specifically to conceding governmental asylum only and so should most probably deny any claims made by the Syrians. In addition, today Lebanon requires a visa for Syrians for the first time since it gained its independence in 1943, which must be renewed every six months, costing approximately 200 dollars, which Syrian refugees cannot afford. Needless to say, some Syrian refugees have been denied the right to pursue asylum and some have been forcibly returned to Syria by the Lebanese authorizes. (“Protecting Syrian Refugees”,12).

Turkey: While Turkey has acceded to the 1967 Protocol it retained a “geographical limitation” whereby only persons pursuing asylum from Europe are protected by the Convention. This restriction, accordingly, excludes those escaping the Syrian civil war (“2014 Syria Regional Response Plan”, 1-8). In addition, Turkish officials have, to this point, declined to recognize Syrians as refugees, instead denoting them as “guests”. Nevertheless, although this designation leads to ambiguity concerning their existence, protection and entitlements, the government has requested a ‘temporary protection scheme’ for Syrian refugees (“Protecting Syrian Refugees”,26). Recently Antalya’s governor dispatched a notification to more than 1,500 Syrian refugees to depart the metropolis, stating that they have caused economic and communal tensions and undermined the tourism industry (“No Escape”, 10-15).

Jordan: According to the Jordanian Economic and Social Council, the Syrian disaster has cost the state 1.2 billion US dollars. The colossal influx of refugees for nearly five years has had a weighty burden on what were meager nationwide resources (Achilli, 2) and has caused the Jordanian government to be in liability from hosting refugees. As a result, Syrian nationals are being expelled for any little instance of disregarding regulations, such as working illegally as there is no domestic law or governing treaty in Jordan that defines a ‘refugee’. Others are expelled for posing security problems. Throughout 2014 the authorities have refused to allow Syrians refugees across the frontier but government authorities have been denying any change to open- border strategy (“Protecting Syrian Refugees”, 18). In November 2014 Human Rights Watch report discovered that the Jordanian government had compelled sick Syrian refugees back to Syria. However, a Jordanian spokesperson denied that Jordan expelled the refugees, stating that they had been “relocated in supplementary hospitals to receive proper treatment by employing doctors,” (Sherlock, 2). The Ministry of Interior retains the definite right to expel foreigners, and can refuse any request for residence permit without enumerating the reasons for that decision, increasing the danger to Syrian refugees. Although, Jordan claims that the principle of non-refoulement is consistently respected however, statistics concur that hundreds of Syrian refugees, including children, have been forcibly returned to Syria (Achilli, 45). As proven above, all key state actors surrounding Syria are at their breaking point; they have obviously violated international refugee law (IRL), are facing no consequences to their breach and are able to escape the law easily. In his address to UN protection council the U.N. High Commissioner for Refugees has called on states to retain borders open for those escaping Syria so they may be provided protection. UNHCR and IOM statistics indicate that the principle of non-refoulement has been breached by all four states; however, nothing has been done until now (Roger, 3). That being said, unfortunately the evidence at hand all concludes that Syrian refugees are obviously in danger of refoulement and in many cases have already started to become victims of it, International Refugee Law has proven to be insufficient and ineffective when it comes to protecting the Syrian refugees from refoulement.

Conclusion: Although there is a legal framework constructed under International Refugee Law to protect refugees from refoulement, IRL failed to protect those in Rwanda and will failed to protect those in Syria because of two reasons. First of all, although there are conventions protecting refugees under International Refugee Law their parameters are not clear and states that breach them face no consequences. Thus, they are violated repeatedly by states, proving the law’s ineffectiveness. Also, the most common problem that arises with refoulement is the fact that, its application requires a recognised clear refugee status something that IRL has not established. The second reason is that even though non-refoulement is considered as jus cogens, it has failed in many cases to assert its supremacy and is currently failing again as we can see that refoulement of Syrian refugees is already taking place. Whilst refugee expulsion is not allowed under jus cogens, there is no clear frame-work for how this rule is to be applied proving Anthony D’Amato’s claim that jus cogens cannot be defined or does not exist due to its ambiguity, lack of utility and generality.

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