Constructing Legal Discourse at the UN Security Council Related to Refugee Crisis and Refusal of Countries to Enter Migrants
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It is difficult to pinpoint the exact origin of the migration crisis that is currently engulfing across Europe, but the migrant that fell from the sky on 9th September 20101 to enter Europe and later on the images of Aylan Kurdi, a three-year-old boy washed up on a Turkish beach in 20152 foreshadowed phenomena of a much larger scale which has shaken European integration at its very centre. There is currently a mass movement of millions of refugees and migrants attempting to flee from conflict areas such as Syria, Afghanistan, and Iraq into European countries since 20153. The migrant crisis has generated an excessive level of disruption and disunity in the European Union and its member states as they attempt to handle ongoing arrivals. However, the crisis is primarily and principally a humanitarian cataclysm of a kind that Europe has not witnessed since the 1930s and 1940s4. Images from Greece and Turkey portray the magnitude and enormity of the human costs related to the crisis, which is growing at a drastic rate even at this writing5. This paper proposes to argue that this particular humanitarian crisis and how EU member states are dealing with the situation points to collectively violating human rights.
The collective violation of such human rights for migrants and refugees stems from deeply embedded and unresolved issues in the EU’s governance. As the EU and its members’ states are struggling with the pressure of mass migration of displaced persons, the treatment of these refugees and migrants exposes what can only be seen as the calamity of core European values. The treatment of such people exposes the shortcomings in the implementation of European fundamental rights and humanitarian law, international human rights, and the EU’s neighbourhood policy.
- “Heathrow Stowaway Who Fell to Death Identified as Mozambican Migrant | World News | The Guardian.”
- <https://www.theguardian.com/world/2016/jan/10/heathrow-stowaway-who-fell-to-death-identified-as-mozambican-migrant> accessed November 22, 2016.
- “Image of Drowned Syrian Boy Echoes Around World – WSJ” <http://www.wsj.com/articles/image-of-syrian-boy-washed-up-on-beach-hits-hard-1441282847> accessed November 22, 2016.
- Eurostat, “Asylum Quarterly Report – Statistics Explained” <http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report> accessed November 22, 2016.
- Justin Borg-Barthet and Carole Lyons, “The European Union Migration Crisis” (2016) 20 Edinburgh Law Review 230.
- United Nations High Commissioner for Refugees (“UNHCR”), Refugees/Migrants Emergency Response-Mediterranean (20 November 2016) <http://data.unhcr.org/mediterranean/country.php?id=83> accessed November 21, 2016.
Central Research Questions
The migrant crisis in Europe is ongoing and will continue to grow until and unless policy measures are taken by the EU and the United Nations General Council and the UN Security Council playing a more active role in the crisis and its root cause. Therefore, the major research questions that arise include the following;
Is the International community, specifically the EU and UK, collectively participating in violating human rights against refugees?
Subsequent questions that build upon the main research question are;
- Are the measures implemented by EU member states and UK governments which limit the movement of refugees legal?
- What is the distinction between refugees and migrants? What term is best to describe the individuals involved in the mass movement into the EU and UK?
- Do “migrant caps” violate international law?
- What is the impact of interpretations of Article 33 of the 1951 Refugee Convention6 in terms of refugee rights and protection against refoulement7?
- How can the UN Security Council play an active role both enforcing international law protecting refugees while also resolving the root cause of the issue leading to the migrant crisis?
- How can legal discourse be developed with the UN Security Council to tackle refugees’ refusal to EU countries?
The proposed research aims to follow the characteristics of Descriptive study methodology. This method of research aims to describe a given phenomenon accurately and to determine associations.
- Duncan Sim, “Experiences of ‘Post-Status’ Refugees: Evidence from Glasgow” (2012) 79 (First Serie Scottish Affairs 82.
- Nikola Stojanovic, “Crisis in the Mediterranean Neighbourhood: A Test for the European Union Migration Policy” (2015) 67 Medjunarodni problemi 328
between different dimensions of the phenomena8. A descriptive study is concerned with describing the characteristics of a specific individual or phenomenon to describe the detailed description of the different aspects of it9. It is often defined as a fact-finding study coupled with adequate interpretation using presupposed prior knowledge of the issues that are being investigated.
The method of conducting legal research is also implemented to conduct the proposed study this includes the following steps10;
- Preliminary Analysis11
- Investigation of Secondary Sources
- Locating and Analysing Primary Authorities
- Interpretations of Sources
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Principle Issues: Ethical, Moral, and Legal Issues
One of the main ethical issues that arise from the refugee crisis is the moral obligation of developed countries in accepting refugees. The current study aims to analyse this moral obligation using deontological ethics and the United Nations Convention Relations to the Status of Refugees
(1951)12. The Refugee convention sets up two normative obligations for states:
- Obligations related to actions required by the states when asylum seekers arrive on their territory13.
- Obligations towards refugees who have fled home countries and are currently residing in refugee camps or informal settlements14.
Based on a preliminary review of available literature, there is an asymmetrical view of the two sets of obligations. The former is stronger and widely recognised than the latter. This is because the signatories of the Refugee Convention have no obligation to fund the protection of
- CG Wren and JR Wren, “”Teaching of Legal Research, The””  Law Libr. J.
- L Sossin, “”Discourse Politics: Legal Research and Writing’s’ Search for a Pedagogy of Its Own””  New Eng. L. Rev.
- C Alexander and AJ Burke, “”How to Locate Educational Information and Data” ”
- CG Wren and JR Wren, “”Teaching of Legal Research, The””  Law Libr. J.
- Resolution 2198 (XXI), United Nations General Assembly
- Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (reprint, Cambridge University Press 2008) p. 125
- p. 126
refugees and any contribution to the issue are considered strictly voluntary15. This voluntary stance needs to be analysed based on international law and ethical theories such as deontology to comprehend how this stance leads to the collective violation of human rights that have been defined and legally agreed upon. There is also the absence of moral and legal obligations to refugees that reach EU states regarding discrepancies arising from burden sharing16. Burden sharing refers to the Global South17 playing a larger role in hosting refugees than Western democracies responsible for largely funding this scheme in which 87 per cent of refugees are hosted in the Global South. In comparison, less than one per cent of refugees are resettled in Western countries18. Lastly, there is no morally or legally accepted obligation to resettle refugees with a majority remaining in protracted refugee situations in the Global South, primarily in the long-term encampment. It has turned into a de facto solution to the global refugee crises.
The proposed study can be defined as interdisciplinary in combining international law with political science, international relations, and human rights to explore and discuss the current issues faced under the refugee crisis. Theories associated with political science and international relations give rise to four main schools of thought including; realism, liberalism, institutionalism, and constructivism19. These four main schools examine through an interdisciplinary approach the content of legal rules and institutions to explain legal institutions’ origins and their effectiveness. The methods have resulted in legal scholars reconceptualising international law from a more general perspective.
The proposed study uses theories of the international legal process to conduct research and answer the developed research questions. The classical international legal process is the method of
- Anna Sergeevna Matveevskaya, “”Modern Trends of European Union’s’ Migration Policy”” (2016) 0 Krasnoyarsk Science 29.
- Sergio Carrera, Leonhard D Hertog and Joanna Parkin, “”EU Migration Policy in the Wake of the Arab Spring: What Prospects for EU-Southern Mediterranean Relations?” ”
- Reference to countries of the rest of the world mostly located in the Southern Hemisphere, such as Turkey which holds the largest refugee population as of 2016.
- Yasin Kerem Gumus, “”What Explains Differences in Countries” Migration Policies?”” (2016) 4 International Journal of Research in Business and Social Science (2147-4478) 51.
- J Samuel Barkin, “Realist Constructivism” (2003) 5 International Studies Review 325.
studying how international law is practically applied, functions with international policy, and studying how international law can be improved. According to O’Connell’ (1999)20, classical International Legal Process “”concentrates not so much on the exposition of rules and their content as on how makers of foreign policy actually use international legal rules””. This particular theory is also used to measure the extent to which individuals are held accountable for abuses in international conflicts.
The proposed study will base its premises on most heavily liberalism, the school of thought which revolves around three interrelated principles;
- Rejection of power politics as the only possible result of internal relations while also questioning realism principles, especially in terms of security and warfare21.
- Emphasize mutual benefits and international cooperation22.
- Uses international organisations and non-governmental actors for shaping state preferences and policy choices23.
Under this thought, international institutions such as the UN Security Council, a primary component for the current study; plays a key role in cooperation among states.
The current study will also implement the theory of institutional liberalism to formulate arguments. This modern theory of international relations claims that international institutions such as the United Nations and European Union can increase and aid cooperation between states24. Using this theory, states will be treated as rational actors operating in an international political system in which no hierarchy is enforced.
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Anna Sergeevna Matveevskaya, “Modern Trends of European Union’s Migration Policy” (2016) 0 Krasnoyarsk Science 29.
Barkin JS, “Realist Constructivism” (2003) 5 International Studies Review 325
Berring R and Heuvel K, “Legal Research: Should Students Learn It or Wing It”  Law Libr. J. <http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/llj81§ion=44>
Borg-Barthet J and Lyons C, “The European Union Migration Crisis” (2016) 20 Edinburgh Law Review 230
Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (reprint, Cambridge University Press 2008)
Carrera S, Hertog LD and Parkin J, “EU Migration Policy in the Wake of the Arab Spring: What Prospects for EU-Southern Mediterranean Relations?”
Cohen M, Berring R and Olson K, “How to Find the Law”
Duncan Sim, “Experiences of ‘Post-Status’ Refugees: Evidence from Glasgow” (2012) 79 (First Serie Scottish Affairs 82.
Eurostat, “Asylum Quarterly Report – Statistics Explained” <http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report> accessed November 22, 2016
Gumus YK, “What Explains Differences in Countries’ Migration Policies?” (2016) 4 International Journal of Research in Business and Social Science (2147-4478) 51
“Heathrow Stowaway Who Fell to Death Identified as Mozambican Migrant | World News | The Guardian” <https://www.theguardian.com/world/2016/jan/10/heathrow-stowaway-who-fell-to-death-identified-as-mozambican-migrant> accessed November 22, 2016
“Image of Drowned Syrian Boy Echoes Around World – WSJ” <http://www.wsj.com/articles/image-of-syrian-boy-washed-up-on-beach-hits-hard-1441282847> accessed November 22, 2016
La Caze M, “At the Intersection: Kant, Derrida, and the Relation Between Ethics and Politics” (2007) 35 Political theory 781
Matveevskaya AS, “Modern Trends of European Union’s Migration Policy” (2016) 0 Krasnoyarsk Science 29
Shores L and Focke H, “Basic Reference Sources” <http://alagappauniversity.ac.in/downloads/examinations/modelQP/Dec2010DDE/CCLIS.doc>
Sossin L, “Discourse Politics: Legal Research and Writing’s Search for a Pedagogy of Its Own”  New Eng. L. Rev.
United Nations High Commissioner for Refugees (“UNHCR”), Refugees/Migrants Emergency
Response- Mediterranean (20 November 2016)
<http://data.unhcr.org/mediterranean/country.php?id=83> accessed November 21, 2016.
Wren C and Wren J, “Teaching of Legal Research, The”  Law Libr. J.
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