Right of Return or Safe Haven
With No Derogation
The Plight of Refugees
When I speak of a foreign policy I have a contextual qualitative understanding of the natural order of things as put forth in John Locke’s Two Treaties Of Government, that “The natural liberty of man [humanity] is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the Law of Nature for his rule.” In the end if we are not in governance of self we are not in accord with law, either man-made or natural.
I do not mean a foreign policy, which is foreign to compassion, foreign to right human relations, international law or right-wing American so-called think-tanks that base their pernicious equations on American self interests, where ‘statecraft’ means to bewitch an unsuspecting American public with an ideology that America “is the most powerful nation on earth” (Obama). Perhaps, but America is only “powerful,” in a global arena of destructive and subversive actions. The global bully America that has destabilised the whole of the Middle East & North Africa (MENA), and its all too willing allies in Europe, must re-visit the international customary laws, which state quite clearly the responsibility of states to help those fleeing intolerable conditions as is the case across the MENA region and indeed across the planet because of imperial rule and hegemony. Such actions then that are foreign, foreign to compassion, foreign to the universal concept of human rights, and foreign to international customary law.
Human beings endowed “with reason and conscience” as nature intended. Not existing in opinions of law but in the topography of their own – a country and the ecology of their individuated consciousness in process of evolution and maintained national identity in culture, religion, and loving societal intergrading. We do not then exist under the “authority of man” but are supported if we speak of civilisation (now under threat) by its legislative will, and, as a moral compass international customary law. That these protective mechanisms fail us incessantly, because as it stands, UN General Assembly resolutions are recommendations raising “important questions,” they fail because Security Council Resolutions are not legally bound to let’s say UN resolution 194, a recommendation for the Right of Return. Here one thinks of Palestine. Security Council Resolutions however are legally binding. Their primary function is to maintain “international peace and security.” We see then that recommendations and resolutions are not helping the refugee crisis or indeed homelessness with nearly 1000 million members of the human race awash “illegal aliens” on a planet that we share.
In June 2015 Kofi Annan stated “It is time to accept the reality that, like the waves on the seas that many of the migrants traverse, the ebb and flow of human movement cannot be stopped. That is why the international community must solve rather than manage migration with understanding and compassion.”
Suffering is not to be ignored, is it? In understanding just what the drivers of suffering are, compassion arises, doesn’t it? Compassion quickens the heart as, in turn, the heart defibrillates the mind. We organise then in eclectic engagement with the natural concomitants of co-operation to help others.
This crisis cannot be managed it must be resolved. And there are ratified provisions (codifications) in normative international law to resolve such a crisis. Lacking is the political will; the stomach for natural and human formed legislative justice, and a conscience led, imperative for action to free displaced (internally) human beings of the Middle East and North Africa (MENA) to their natural course home through safety zones, or when displaced externally, into another country to be greeted with compassion under international law with no derogation.
The Catholic Herald reported on the 14th of September Pope Francis as saying “What I asked was that in each parish and each religious institute, every monastery, should take in one family, a family, not just one person. A family gives more guarantees of security and containment, so as to avoid infiltrations of another kind”. This is not a statement of Vatican principle I take no lessons from the Holy See in right conduct. Sui Generis: having the meaning of existing out of the normal range of legal protection, the Vatican only enjoys in essence a “legal personality” with 180 states; still it exists within a moral dilemma where it makes moral claims on our time and space and conscience, while covering up some of the most abhorrent abuses in history. Just two families have been taken into Vatican parishes.
Still, Pope Francis plea as a human being is not thereby delegitimised, it is a right one in this declared Jubilee Year of Mercy, which has clearly affected the decisions of European governments to dissuade, human beings, our brothers and sisters, from seeking safe haven where no-mercy is the political mantra. Legislative council can only retire recreationally into the library of human affairs as advisory if foreign policy with a conscionable intuitive meaning is allied to trusted action in co-operative, transparent and integrated missions to restore the displaced peoples of the MENA, as is their right, to lands that need rebuilding. “2014 was a catastrophic year for millions caught up in violence. The global response to conflict and abuses by states and armed groups has been shameful and ineffective” said Salil Shetty (Secretary General, Amnesty International). Furthermore, “Governments must stop pretending the protection of civilians is beyond their power and help roll back the tide of suffering of millions. Leaders must embrace a fundamental change in the way they respond to crises around the world” stated Anna Neistat (Senior Director for Research, Amnesty International).
Moreover, according to the June 20th 2014 UNHCR Report “The UN refugee agency reported … World Refugee Day that the number of refugees, asylum-seekers and internally displaced people worldwide ha[d], for the first time in the post-World War II era, exceeded 50 million (my emphasis) people. During the year, conflict and persecution forced an average of 42,500 persons per day (my emphasis) to leave their homes and seek protection elsewhere, either within the borders of their countries or in other countries.”
In addition, 2015 saw a worsening situation in many countries or a status quo of suffering, the figures and countries are from relief-web Crisis Overview 2015 Humanitarian Trends and Risks for 2016. Below are but a few from 11 identified countries that only face bleak conditions in 2016 other countries are not forgotten.
“South Sudan: There are around nearly 1.7 million IDPs and around 200,000 refugees. An estimated 220,000 people were newly displaced in 2015.
Somalia: 9170 Somalis registered as refugees in neighbouring countries in 2015, compared to 18,560 in 2014, bringing the total to nearly 970,000 (UNHCR, 12/201409/2015) 5,000 Somalis have returned from Kenya in 2015; nearly 30,000 returnees and refugees have arrived from Yemen (UNHCR, 01/11/2015 IOM, 05/11/2015).
Syria: Over half of Syria’s population is now displaced. The number of IDPs fell by one million in 2015, explained by changes in data collection combined with the high number of Syrians fleeing the country. More than 500,000 Syrian asylum seekers have been registered in Europe since 2011: almost 300,000 of them arrived in 2015 (HNO 2016, UNHCR, 19/10/2015).
Ukraine: Nearly 900,000 people had been displaced within Ukraine by January 2015, and another 600,000 have been displaced since then. The vast majority of IDPs have fled eastern Ukraine, although around 20,000 are from Crimea. Most IDPs fled in mid 2014 as fighting intensified in the east (DMC, 08/2015; IOM, 01/2015; OCHA 23/01/2015 21/08/2015).
Yemen: More than two million people have become internally displaced since March; 80,000 were newly displaced in 2014 (Task Force on Population Movement, 14/10/2015; HNO, 2015). Aden, Taizz, and Hajjah governorates have recorded the highest number of IDPs (Task Force on Population Movement, 14/10/20150. More than 120,000 people (including Yemenis, returnees, and third-country nationals) have fled Yemen since March (UNHCR, 20/10/2015); 260,000 registered refugees, mostly Somalis, live in Yemen -the figure has remained relatively stable for the last three years (UNHCR, 15/09/2015). Conflict in areas close to refugee hosting sites has resulted in further displacement of refugees and asylum seekers, loss of livelihoods, and a breakdown in basic services (Revised, HNO 06/20150.)”
Article 1 of the Universal Declaration of Human Rights (UNDHR) holds “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Here we have a contextual root for human rights and Concordia (harmony) to be found in a “durable peace” and through humanitarian law, the right of “unimpeded access” to those in dire need whether externally or internally displaced in the MENA countries, or indeed across the globe.
The peremptory jus cogens (Latin: compelling law) is an overriding international law from which there can be no derogation, and must be used for a wise ascent of the constant value of the normative treatises law, human rights law and accompanying now as the Sherpa, humanitarian law. A lawful ascent to a moral high ground to plant the billowing flag of the UNDHR Article 6 where “Everyone has the right to recognition everywhere as a person before the law.” And as the multitude of refugees of the MENA, and further afield, gather before the land mass of Europe, let them in, for it is their right, and our compassionate obligation.
The UN Convention which relates to the Status of Refugees is a 1951 convention along with the 1967 Protocol “which removed the geographic and temporal limits of the 1951 Convention” and of course customary international law. In sum the so-called “Magna Carta of international refugee law” has the singular definition of what constitutes “refugee”. Article 1 provides “A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Also and importantly for those European countries that would dissuade displaced refugees on seeking refuge, the 1951 Convention further stipulates that “subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules.” In other words refugees/asylum seekers should not be persecuted having fled persecution.
From the “6-10 September 1969” heads of states gathered in Addis Ababa in recognition of the humanitarian disasters that were unfolding, and perhaps with the foresight of the catastrophes to come. The so titled Convention Governing the Specific Aspects of Refugee Problems in Africa was convened to seek solutions in light of the fact that the “Charter of the United Nations and the Universal Declaration of Human Rights have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.”
A number of points in the preamble made clear the problem of distinguishing between the refugees with common cause in “alleviating their misery and suffering” and those with subversive intentions in moving from one country to another.
1: “Noting with concern the constantly increasing numbers of refugees in Africa and desirous of finding ways and means of alleviating their misery and suffering as well as providing them with a better life and future,”
2: “Recognizing the need for and essentially humanitarian approach towards solving the problems of refugees.”
Points 4 and 5 addressed the concerns of ‘subversion’: “Anxious to make a distinction between a refugee who seeks a peaceful and normal life. And person fleeing his country for the sole purpose of fomenting subversion from outside. Determined that the activities of such subversive elements should be discouraged, in accordance with the Declaration on the Problem of Subversion and Resolution on the Problem of Refugees adopted at Accra in 1965. Article 1 Definition of the term “refugee” as found in paragraphs 1 and 2 (see footnote).
The response to the asylum seeker is found Under Article 2 Asylum we find in paragraphs 2 and 3: “The grant[ing] of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State. 3. No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.”
Here we find regional and national protection, as defined and bolstering international customary law.
More importantly, that asylum is a “peaceful and humanitarian act.” Here we find no dissuasion as expedited by European nation states succumbing to right-wing pressure. The math needs be done and more than 200,000 (UN suggested figure) souls seeking safe haven must be the urgent agenda for all EU member states, as millions will arrive and should be met with peaceful and humanitarian acts.
A further international bolstering of the rights of refugees regionally came with the: “Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama. Adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia from 19 – 22 November 1984,” Emphasised the integral state mechanisms or instruments that are so organised to consult and cooperate with the necessary UN conventions protocols, and “Government offices”.
So (a) “To carry out, if they have not yet done so, the constitutional procedures for accession to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.” (b) “To adopt the terminology established in the Convention and Protocol referred to in the foregoing paragraph with a view to distinguishing refugees from other categories of migrants.” (c) “To establish the internal machinery necessary for the implementation, upon accession, of the provisions of the Convention and Protocol referred to above.” (d) “To ensure the establishment of machinery for consultation between the Central American countries and representatives of the Government offices responsible for dealing with the problem of refugees in each State.” (e) “To support the work performed by the United Nations High Commissioner for Refugees (UNHCR) in Central America and to establish direct co-ordination machinery to facilitate the fulfillment of his mandate.”
Persecution, as one is aware, has a history, as does the natural urge to be free, to flee from tyranny, as natural as a flower spiraling, arching to sun light for life.
Opinion thought Plato being the “medium between knowledge and ignorance” so one must traverse in reverse from ignorance to knowledge through adjudged lawful opinions. And so it is, that in knowledge we recognise that we stand in protective governance of our own senses and the moral, ethical, lawful actions that inform the world of a putative presence of justice, if only in our hearts and minds so by this virtue and in humility speak and act, for those muted by horrific violence and persecution.
Europe must let them in, let them in, let them in, let these suffering people in to be met with the regional instruments of democracy, and, as souls fleeing persecution, the true measure of any nation? Its preparedness to do the right thing and act in accordance with the law. We expect nothing less.
Clive Hambidge is Human Development at Facilitate Global. Clive can be contacted by emai: firstname.lastname@example.org
 UNHCR was set up in 1951 to help the estimated 1 million people still uprooted after World War II to return home. Since then, we have helped find durable solutions for tens of millions of refugees and they remain our core constituency. The latest figures available show that the number of refugees of concern to UNHCR in mid-2014 stood at 13 million refugees, up from a year earlier. A further 5.1 million registered refugees are looked after in some 60 camps in the Middle East by United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which was set up in 1949 to care for displaced Palestinians. http://www.unhcr.org/pages/49c3646c1d.html
 1. For the purposes of this Convention, the term “refugee” shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his 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 habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.2. The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.