Rory O'Keeffe, Koraki
Pushbacks and rhetoric: defending international law and how the EU must do better
Updated: Sep 5, 2020
As evidenced by events over the last few weeks – and indeed months – the very existence of international law must now be recognised as being under attack.
We thought it would be useful, as a prelude to a response, to put together the following on international law, the Dublin Regulations, and what should and can be done next…
On Monday 24 August, I was fortunate to be invited to take part in a debate on international law on Al Jazeera’s Inside Story.
Specifically, the debate was about whether Greece and the EU are breaking international law in their treatment of people hoping to claim asylum – and specifically in preventing those people entering the political bloc.
You can watch the show here, and I hope you do. My colleagues on the panel were also excellent and I hope we combined to make some decent points.
In short, the answer is ‘yes’. We will start by looking at why that is, and then we will come to a question I was asked late in the show: ‘Is there anything, practically, realistically, and quickly, that can be done to help these people (refugees and asylum seekers)?’
The answer to this is also ‘yes’. But we will look at that later.
1. Pushbacks, rhetoric and the attack on international law
The debate was largely built upon the revelation last month (August) that the Greek coastguard has – at the behest of the Greek government – pushed back at least 1,072 men, women and children from its sea borders since the middle of March. Before we go on, we should note that the Greek government – the Nea Dimokratia party, led by the country’s Prime Minister Kiriakos Mitsotakis – denies this. He and his ministers have made several statements that no push-backs have in fact taken place.
There are a number of problems with these statements, however.
First is that many of these pushbacks have been videoed by people very clearly standing on coastlines of the Greek Aegean islands. Mitsotakis and his government claim that these videos were in fact staged by the Turkish coastguard to ‘smear Greece’.
This is such a ludicrous claim it is hard to accept anyone in his government would actually make such a statement, but it is perhaps a mark of just how bad relations between Greece and Turkey are right now that some Greek people appear to be prepared to believe it.
It is impossible to say for absolute certain, but it is reasonable to suggest that the idea that the Turkish coastguard has set up a series of push-backs which are then described in intricate detail by eye-witnesses who are not in, and have never been in, either the Turkish coastguard or even Turkey is simply not credible.
Secondly, in Mitsotakis’ statement, the Greek PM stated that ‘even if there were (push-backs), this would be perfectly acceptable’ before stating once again, and as ever completely incorrectly, that the people travelling to Greece are ‘economic migrants’, rather than refugees.
Suffice it to say that this is incorrect: international law makes it clear that you cannot ‘know in advance’ whether someone is a refugee. Equally, our own factcheck showed that even by Mitsotakis’ inadmissible ‘measurement’ (that only people escaping war can be counted as refugees – once again, absolutely not the legal definition, rather one he has grasped at to suit his own outlook and preference) his repeated claim is simply wrong.
And international law, as we shall see, is very specific that it is not ‘perfectly acceptable’ for push-backs to take place. They are in fact specifically outlawed.
Thirdly, the world watched – many of us in horror, others, sadly, with indifference – the Greek government send soldiers and armed police to its land border with Turkey, where they fired on asylum seekers and prevented them entering Greece, just two weeks before the starting point of the investigation into push-backs at sea.
Yet the Greek government appears to wish us to accept that though it definitely did carry out illegal push-backs at its land border, it definitely did not do so at its sea borders. This, too, seems a little hard to swallow.
Nor is Greece alone. The UK government has, in recent weeks, complained of a ‘crisis’, involving an ‘invasion’ (the latter a description by former UKIP and Brexit Party leader Nigel Farage) of ‘illegal migrants’ (itself a legally-false label, as we shall see).
In fact, slightly more than 5,000 people have attempted to reach the UK by boat since the start of this year.
In response, the UK Home Office – and more specifically Home Secretary Priti Patel – responded in ways we might feel unbefitting for an elected government in a democratic state which is the fifth-richest on Earth: Patel requested the Ministry of Defence to ‘send the Navy’ to ‘stop migrants’ as the number of ‘small boats’ crossing the Channel was ‘appalling’. In fairness, an unnamed Ministry of Defence source described the request as ‘completely potty’.
Patel’s Ministry last week (Wednesday 26 August) issued a video, in response to lawyers demanding that aircraft carrying people judged to have ‘no right’ to remain in the UK and apply for asylum be grounded in order for their clients to be allowed to appeal the decision, as is their right under UK, EU and international law.
The video claimed that ‘activist lawyers’ were ‘exploiting the law’ to ‘delay and disrupt the government carrying out returns’. It received widespread criticism, and was taken down from the Home Office website, though only after more than 24 hours, and being watched by more than 1.5m people. The Home Office’s Permanent Secretary Philip Rutnam said it ‘should not have been used on an official government channel.’ He is correct, but it is hard to imagine Patel and her team did not know this when they posted it.
Among the criticisms of the video, this is perhaps the best and sadly most accurate: that the UK government – in common with the Greek government, and several others, including Poland, the US and Hungary (not excellent company to keep) as well as many far-Right populists across the EU and beyond, are not so much attacking individuals as launching an assault on the law itself; demanding that they must be allowed to act as they wish, unrestrained by any kind of guidance or system of regulation.
To that, we should simply add that the idea that a lawyer literally doing their job – using the law to protect their client and their client’s rights under that law – as an ‘activist’ is one of the stranger things to have happened in this extraordinary period of human history. We should note that we saw an excellent ‘activist chef’ in a restaurant last week: he was cooking meals all night…
(we must also note that these flights continue. Yesterday, Thursday September, a flight from the UK to Spain left 11 Syrian refugees with no food, water or contacts in the Mediterranean state.
In any case, the facts should by now be clear: there is a concerted effort, at both ends of the EU (the UK in the West, Greece in the East) and other states across the world (the US and Russia are both long-term offenders, but under Trump and the increasingly emboldened Putin, things have recently degenerated significantly; meanwhile, China has spent the past six months forcing Uighur people into concentration camps: four of the five named states in this paragraph have vetoes at the United Nations) to systematically attack and undermine international law.
Further examples of this pre- and post-date these recent developments. In late February, Greece sent soldiers and armed police to its land border with Turkey when the Turkish President Recep Tayyip Erdogan announced that the state’s border with Greece was ‘open’ once again.
Erdogan’s own motivation for this was pretty clear: he was angered by the EU’s refusal to back his (wildly misconceived) plan for a ‘North Syrian safe-zone’. He was also angered by the EU’s absolute failure to fulfil either of its major promises to Turkey set out in the EU/Turkey Deal (the EU promised Turkey €6bn by 31 December 2018. To date, it has handed over less than €3.5bn. It also promised to offer Turkish people visa-free travel throughout the Schengen Zone. There are many reasons this has not happened, but it was promised by the EU and has not been delivered).
So, we should not pretend that the Turkish government’s major motivation was anything other than sheer political pragmatism – an attempt to use people movement to gain what it had not through negotiation.
However, uncomfortably, Erdogan’s measure was not illegal: the EU’s deal with the state was, as was Greece’s decision to close its border to refugees and send soldiers and armed police to fire gas and rubber bullets at them (one man was killed in this ‘stand-off’ when struck in the throat by a rubber bullet fired by the Greek force).
The Greek government, far from explaining that this was in some way an unfortunate but unavoidable situation, or that it was organising a means for the people to enter in an orderly and safe fashion, instead announced that the refugees were a ‘weapon’ ‘sent by Turkey’, that they were ‘invading’ Greece and that Greece had the right to ‘defend its borders’ and itself from such an invasion.
Nor, when offered the opportunity to do so, did the EU as a political organisation intervene to protect international law. Instead, in early March, the President of the European Commission, Ursula von der Leyen, said: ‘Greece is our shield’.
Once we get past the obvious question: shield against what? Against some desperate people who want to be safe and rebuild their lives, as normal, contributing members of Greek and/or EU society? We have to come to terms with the fact that the Greek government chose to strike against international law, to ‘justify’ that strike using the language of war, and that the EU openly backed it in doing so.
At the other end of the bloc, the UK government on Sunday (30 August) announced that it would split a four-person Yemeni family, allowing the father to remain, and expelling his three sons to Spain. It argued this was because the father had arrived by aircraft, while the sons entered the UK by boat.
(the three men, who were scheduled to be on the same flight on Thursday 3 September as the 11 Syrian people stranded in Spain mentioned previously, have been granted a reprieve. They still face – illegal – deportation should things not significantly change)
There is no clause in international law which demands a person must or must not enter by a particular mode of transport, but more worrying than this bizarre interpretation of the law was the following statement, issued by the Home Office, about the decision:
‘It is an established principle that those in need of protection should seek asylum in the first safe country that they enter.’
Now. This is not an established principle. International law does not mention, anywhere, the idea of a ‘first safe country’, let alone that people in need of protection ‘should seek asylum’ there. This statement is absolutely false from start to finish.
Under other circumstances we might conclude that this was a simple mistake, but the fact that this is an official of the UK Home Office, speaking to a national newspaper, and in the wider context, we must conclude that across Europe – and beyond – international laws and the inalienable human rights they defend, are under attack.
2. International law part 1.
The problem with international law coming under attack is manifold.
First of all, we need to be absolutely clear: international law does exist. People are granted rights by it, and it is designed to protect those rights. It is not, however, strongly-enforced, because the only body with the nominal ability to do so, the UN, has far too little power to carry this duty out.
In another piece we might consider how the UN may be empowered, and/or the nation-state reduced in power, so it may do so. But for now, the focus of this article remains on that law.
Secondly, for the reason we touched on above – that the nation state currently is not just the foundation but also the most powerful single unit within the global legal system. This means that even if it were difficult to change those laws (though as things stand we fear this may be closer than at any point since the signing of the 1951 Geneva Conference on the Rights of the Refugee), nation states can effectively ignore them, and simultaneously pretend either that the laws say things they do not (as in the Home Office statement regarding the Yemeni family, above) or that things ‘make more sense’ if done the way the state itself prefers (as in the Greek/EU response to Turkey re-opening its borders in February this year).
In this way, the laws seem not to exist, not to contain protections they definitely do contain, or to be impositions not on governments (which they are of course designed to be) but on people, (whom they in fact exist to protect).
The latter ‘nationalist’ approach – the claim (historically very much unproven) that what is ‘best’ for the nation and its people is to secure rights for itself and itself alone, whatever the cost to people from ‘outside’ its borders, is very much at a peak across the EU at present, and is embodied by the UK’s Conservative Party, Greece’s Nea Dimokratia, Hungary’s Orban regime, the Polish Law and Justice Party and, further afield, Putin’s Russia and Trump’s US.
Thirdly, and vitally, something which we feel is in danger of being lost in the debate: international law is humanitarian law.
That is, the things for which we work, and the rights we fight to protect are guaranteed by international law. That law certainly contains flaws. It also does not go far enough in some cases, but at its base, international law is humanitarian law. If it goes, it will be impossible to do our jobs, and impossible to legally protect, work with and for, and encourage the comfort and success of men, women and children who seek opportunities and security.
So, it is our duty – as organisations, and individuals; alone and alongside like-minded groups and individuals; and with the wider public we need to engage and inform – to defend international law from this attack. In fact, we are among the few who both can and will do so.
To do so, we should take a look at what international law on refugees actually is, and specifically the idea that refugees are ‘not allowed to’ enter states, that they can be declared ‘illegal immigrants’ while still travelling, and that they are 'supposed to' stop in 'the first safe state they reach'.
International law (under the 1951 Geneva Convention on the Rights of the Refugee, and also in the UN’s Universal Declaration of Human Rights) is extraordinarily clear that any man, woman or child, is entitled - whether they have papers or not - to cross any number of borders in order to reach whichever state they choose, as long as they claim asylum when they reach their final destination.
Of course, should they not claim asylum, or should they apply and that state refuses them, they can be removed. But they CANNOT be prevented from accessing any state under international law.
That law takes precedence over any and all localised agreements, of any kind. This includes the 'Dublin Regulations' (more below) at EU level.
There are no 'ifs' or 'buts' about that. Every person is entitled by law to travel anywhere they choose, provided they claim asylum when they arrive in that destination state.
There are several good reasons for this.
a) It is simply impossible to expect people being bombed, or under threat of death or persecution within their home state to have time to consult some document to see which states they - as a national of their home country - are allowed to travel to. In any case, no such document exists.
b) similarly, it is impossible to expect a person to apply for asylum in the country of their choice and wait the six-eight months for their claim to be processed, while bombs are falling/police knocking on their door/their children dying in the country they are desperate to leave.
c) In fact, MOST refugees go to the country next door. This is why Turkey (population 79 million, mid-ranking economy) has 3.65 MILLION Syrian refugees, and Lebanon (the size of Cornwall, population pre-2011 four million, mid-to-low-ranking economy) has 1 million Syrian refugees (one in every five people in Lebanon is a Syrian refugee), while the EU as a whole (population 508 million, richest political bloc ever to have existed in all human history) has a total of one million. And why the UK (population 65 million, fifth-richest country on Earth) has just 20,000 Syrian refugees.
But this is clearly not a sustainable model. Turkey - let alone Lebanon (or Pakistan, or Uganda, all of which have more refugees than the entire EU combined, including the UK) - cannot possibly be expected to stand alone on this. If that was the system, very quickly borders would close and people would be massacred en masse.
We will in a moment, move on to the Dublin Regulations, for reasons which for many of you are already not just clear, but sounding a klaxon in your heads even as you read this.
But before we do, we must summarise:
International law has absolute priority on this issue: ahead of national or even EU law.
Under that law, any person is entitled to travel any distance – with or without paperwork – to enter any state they choose, regardless of how many borders they cross – as long as they claim asylum on entry to that destination state.
This means that a) it is not possible for anyone to be dismissed as an ‘illegal immigrant’ before they have arrived in your country and had the opportunity to apply for asylum; b) it is illegal for a state to deny people entry. It may remove those people if they refuse to claim asylum, or of course if their asylum application is considered and rejected. But it cannot – for any reason – deny access to a person or people; c) there is no obligation for any person, anywhere on Earth, to stop in the ‘first safe state’ they reach.
3. Dublin Regulations: the ‘first safe state' myth
We simply cannot stress enough that no law, anywhere, requires men, women and children who intend to claim asylum, to end their journey in the ‘first available safe state’, at least in part for the reasons noted above.
But the idea that some law, somewhere, does say this, has taken hold to an alarming degree across Europe, and to a lesser extent also in the American continent, particularly the USA.
It is an outright attack on human rights – and it is worth noting, should you ever find yourself in such a conversation – that allowing governments to strip people’s human rights may seem fine if you can convince yourself it doesn’t directly affect you, but these are everyone’s rights: should they be taken from a Somali eight year-old, they are also being taken from you.
In any case, the idea has become extremely popular among some governments and an enormous number of far-Right populist groups and organisations.
In some cases, such as all governments, without exception, we can simply and openly call the statement a lie. It is possible that for others, it is a genuine error, born out of ignorance or misinterpretation.
In all cases, however, the ‘end-point’ of the conversation will be a reference to ‘European law’ or, if a person/organisation/government is better-informed, ‘the Dublin Regulations’.
So, we are now in the third iteration of the Dublin Regulations (from here, ‘Dublin’), which were first written, as the Dublin Convention, in 1992.
There are ways in which Dublin breaks international law, and we will touch on those, and it must also be remembered at all times that Dublin itself is a regional agreement between the EU member states and as such is secondary to international law, which takes precedence over it.
But it also simply does not say – at any point – that any man, woman or child seeking asylum ‘must stay’ in either the first ‘safe state’.
From here, we will return to the ‘point’ format, as it may aid clarity:
Dublin is often claimed to demand that refugees are obliged to stay in the first EU state they arrive in. In fact, before we go further here, it's worth revisiting the issue of the ‘safe state’.
There is no piece of law, or local agreement, anywhere on Earth, which even uses the term 'safe first state', let alone demanding that a refugee must stop and remain in the first 'safe state' they enter. Because all states are different. What is safe differs from person to person. (also because of the points above, regarding Lebanon and other states' ability to deal alone with a large increase of people and the safety of men, women and children and their ability to make a quick escape). In summary, no law anywhere demands refugees find and stay in the 'first safe state'. Anyone who says any law anywhere DOES say that is at best, mistaken, and at worst deliberately saying things they know to be false.
Dublin does say that the first EU state in which a person arrives has a responsibility to register that refugee. But do note here that the person themself has no responsibilities whatsoever on this matter. Dublin makes this the duty of the state, not the individual.
It also says that if a refugee travels on from that first EU state to another EU member state, the second state may (it does not have to, at all) choose to return them to the EU state in which they are registered. It may not return them to a state in which they are not registered, which once again means that at the very least, EU states must allow people to enter, and then process their registration to see whether they can send anyone anywhere.
Once again, a state may choose to do this. Dublin not only does not require a refugee to register themselves in the first EU state they enter, it also does not require any other state to send refugees back to the first EU state they entered.
So not only does international law not require people to stay in the first so-called 'safe state', neither does Dublin. Nor does Dublin actually require any refugee to do anything. It just says what the first EU state they enter should do, and what can be done by other EU states. The law being cited does not exist.
And in fact, even in this, Dublin breaks international law. Because it's illegal to 'register' refugees in a state in which they do not want to live, and then pretend this entitles other states to force those refugees back to that state.
But once again, even Dublin does not say what some people think 'is' international law, and in fact does not actually demand refugees as individuals or a group do anything at all. It's addressed to states.
So how has this situation come about?
As already noted, the Dublin Convention (Dublin I) was written in 1992, at the same time as the Maastricht Treaty. Not by the same people, but by fellow employees of the then European Community.
At this point, the bloc was planning to become be far more unified, with greater political and social links and to be an effectively borderless zone. Dublin I was written with this in mind.
If this had happened, what Dublin I wanted and DIII still contains, would have been less of an offence against international law. Because the requirement of the first member state to register a refugee would have been just as sensible if that state were Greece as Germany or the UK: after that registration, the person could have gone wherever they liked in the EU and the EU would have had control of that application – it would have processed it, rather than an individual 'nation'.
But that EU simply does not exist. We may hope it will, but it does not.
As a result, what we have at present is a document written in the hope of a reality that hasn't come about, and which as a result directly contravenes international law.
Even so, international law and Dublin do not require a person to remain in the first 'safe' state in which they arrive. Quite the opposite. And Dublin makes absolutely no demand on any refugee to do anything at all.
4. The question: push-backs and the EU
We will return for a moment to the Al Jazeera question.
The problem with doing shows like this is that they move in different, not always predictable, ways. The question ‘is there anything that can be done?’ was not on the topic list I had been given, but it’s totally reasonable to ask. We should be thinking about what can be done, and we should be doing it.
But given the way the debate had, to that point, gone, it would have been extremely difficult to answer without first unpicking some of the things that had been said.
Here, we don’t have to do that. So instead, we can simply answer the question: ‘Is there anything, practically, realistically, and quickly, that can be done to help these people (refugees and asylum seekers)?’
As we said at the start, the answer to this is ‘yes’. A slightly longer answer is ‘yes, of course’.
But in the light of the analysis above, the answer is as follows:
The EU is a major international political organisation. It is the richest bloc to have existed in the history of the planet. It is absolutely capable of receiving the people who wish to come here.
More than that, those people can and given the chance will, be an absolute boon to the continent as a whole. Their skills and expertise will literally further enrich the bloc, and their experience, talent and interests will enrich all of our daily lives and the music, art, sport, food and other ‘leisure’ activities we all enjoy.
That is, even were it not morally and legally the correct thing to do, not only can and should the EU do this, doing it will benefit every single person already here, as well as the newest arrivals to the continent.
Equally, the EU presents itself at home and abroad as an arbiter and a devotee of law – that what is done must be what is legal because what is legal is what is agreed to be what is best for the individual, as well as for the communal whole.
There are moments where one might disagree with that idea – where one could think of alternatives which would be far better for the global community than what is currently legal, but international law on people’s movement and rights related to asylum is in fact a good example of where the laws – if followed – can genuinely benefit everyone.
But the EU has – since 2015 and arguably even earlier – failed absolutely to follow those laws. It has, in fact, failed itself, on its own terms.
To some extent, this is because of member states such as Hungary, Poland and others closing their borders to prevent people transitioning from Greece to North-Western member states such as Germany and Sweden. In part, it is also because of the UK, Denmark and Poland’s decision to veto EU plans to ‘share’ new arrivals across the bloc (Hungary, the Czech Republic and Spain also indicated they would veto if necessary) in late 2015.
But the EU itself must also take some responsibility. It is extremely worrying that it effectively allowed its entire internal structure to be derailed by the actions of a few states refusing to act as members and instead as individual states. It is concerning that it remains effectively derailed some five years on, and it is alarming – even if in some ways understandable – that it has taken no action against any of these states.
It is also an undeniable fact that in continually ignoring and often breaking international law the EU is not only destabilising the global legal system and undermining the concept of universal human rights, it also has been and is undermining itself on its own terms.
Even if we were to argue that the EU ‘cannot prevent’ Greece illegally pushing refugees back from its borders (and it absolutely can) that would still not excuse Ursula von der Leyen praising its actions and calling Greece ‘Our shield’.
And the EU can do something different.
The first thing it can – and must – do is to stop publicly cheerleading law-breaking by its own member states.
Then it must demand that the governments of its members whose borders are likely to be the first crossed by people from outside the bloc: Greece, Italy, Spain, Cyprus, Malta, abide by international law. That they must no longer engage in illegal pushbacks, and that they must stop pretending that the law either does not exist, or says something it does not.
It must stop using the Turkish coastguard and what passes for its Libyan equivalent as sea militias which use violence to prevent people exercising their right to reach the EU.
It should speak openly – within the bloc and beyond its borders – to counter falsehoods about people moving and the laws related to that.
It would of course be sensible for it to be able to prevent smuggling and ensure it as a bloc is aware of the exact numbers entering. To do this it must set up safe transport routes, and run the transportation which uses that routes, as well as making sure the routes and transportation are easy to access for anyone who might need them. This will also actively save lives and enormously reduce the risk of death, bankruptcy, exploitation and kidnap to the men, women and children trying to make the journey.
And it must get its own house in order. As well as the (entirely reasonable) demands it must make of its ‘border nations’, it must ensure that each state within the bloc takes the appropriate number of new arrivals. It is extraordinary that we are even talking about this as if it were a ‘burden’ when in fact it will enormously benefit every single member state and every person within them.
In effect, it must follow international law, and ensure its own states do so. It must ensure it follows its own rules, and ensure its own states do so. It must work as a bloc, rather than leaving states to strike out on their own with disastrous consequences for those states, the bloc, all the people within it, and all the people who need to enter.
And it must tackle death and exploitation on its borders by providing safe transport to all who require it.
Finally, I would like to see the EU, rather than individual member states, process all asylum applications made by people entering the bloc. This is not ‘necessary’, but makes sense from every possible perspective.
This was not easy to say on a TV broadcast. I will endeavour to do so forcefully if I am given another opportunity.
But it is also worth noting that we – humanitarian organisations and as individuals – can call for this from the EU. We can and should communicate this message at every opportunity, in person and via every possible type of media channel: broadcast, social media, print and online, on a regular basis. We can and must push for the EU to change.
We must also step up and defend international law. Doing so will not ‘solve’ all the issues we now face – many people oppose allowing people to enter the states in which they live at all. We have suggested and will continue to push the idea of positive (by which we also mean accurate) messaging about refugees to governments, the general public and decision-makers at every level.
But the law does exist. For all its flaws it does protect the rights of the people we work with and for, and indeed our own lives. We need to keep reminding people the law exists, what it says, why it says it and the ways it benefits us all.
The alternative is to lose it, and with it our rights, and our ability to work with and assist people who need safety and a chance to rebuild their lives.