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Thesis Proposal

Are we Participating Collectively in the Violation of Human Rights?

Constructing Legal Discourse at the UN Security Council Related to Refugee Crisis and Countries' Refusal to Enter Migrants.

Introduction

It is difficult to pinpoint the precise origin of the recent migration crisis that is currently engulfing Europe. Still, the migrant that fell from the sky on 9th September 20101 to enter Europe and then later on the images of Aylan Kurdi, a three-year-old boy washed up on a Turkish beach in 20152 foreshadowed a phenomenal crisis of a much larger scale which has presumably shaken European integration at its very center.

According to the recent reports United Nations High Commissioner for Refugees, 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 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 growing crisis at a drastic rate even at this writing5. This paper proposes to argue that this particular humanitarian crisis and the methods with which European Union (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 member 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


1 “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.

2 “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.

3 Eurostat, “Asylum Quarterly Report - Statistics Explained” <http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report> accessed November 22, 2016.

4 Justin Borg-Barthet and Carole Lyons, “The European Union Migration Crisis” (2016) 20 Edinburgh Law Review 230.

5 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.


Treatment of such people exposes the shortcomings in implementing European fundamental rights and humanitarian law, international human rights, and EU’s neighborhood policy.

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. The UN Security Council plays 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 violate human rights against refugees?.

Subsequent questions that build upon the main research question are;

1. Are the measures implemented by EU member states and UK governments that limit refugees' movement legal?

2. What is the distinction between refugees and migrants? What term is best to describe the individuals involved in the EU and the UK's mass movement?

3. Do “migrant caps” violate international law?

4. What is the impact of interpretations of Article 33 of the 1951 Refugee Convention6 in terms of refugee rights and protection against refoulement7?

5. How can the UN Security Council play an active role in enforcing international law protecting refugees while also resolving the root cause of the issue leading to the migrant crisis?

6. How can legal discourse be developed with the UN Security Council to tackle refugees' refusal to EU countries?

Proposed Methodologies

The proposed research aims to follow the characteristics of descriptive study methodology while utilizing the positivist approach as a research paradigm. This research method aims to accurately describe a given phenomenon and determine associations between different dimensions of the phenomena8. A descriptive study is concerned with describing the characteristics of a specific


6 Duncan Sim, “Experiences of ‘Post-Status’ Refugees: Evidence from Glasgow” (2012) 79 (First Serie Scottish Affairs 82.

7 Nikola Stojanovic, “Crisis in the Mediterranean Neighbourhood: A Test for the European Union Migration Policy” (2015) 67 Medjunarodni problem 328

8 CG Wren and JR Wren, “Teaching of Legal Research, The” [1988] Law Libr. J.


individual or phenomenon with the aim of the detailed description of 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, which includes the following steps;

1. Preliminary Analysis

2. Investigation of Secondary Sources

3. Locating and Analysing Primary Authorities

4. Interpretations of Sources

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Principle Issues: Ethical, Moral, and Legal Issues

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 analyze 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:

1. Obligations related to actions required by the states when asylum seekers arrive on their territory13.

2. Obligations towards refugees who have fled home countries and are currently residing in refugee camps or informal settlements14.

Based on the preliminary review of available literature, there is an asymmetrical view of the two sets of obligations. The former is stronger and widely recognized than the latter. This is because signatories of the Refugee Convention have no obligation to fund refugees' protection, and any contribution to the issue is considered strictly voluntary15. This voluntary stance needs to be analyzed based on international law and ethical theories such as deontology to comprehend how this stance leads to the collective violation of human rights, defined and legally agreed upon. There is also the absence of moral and legal obligations to refugees that reach EU states, specifically regarding discrepancies arising from burden-sharing.

9 L Sossin, “Discourse Politics: Legal Research and Writing’s Search for a Pedagogy of Its Own” [1994] New Eng. L. Rev.

10 C Alexander and AJ Burke, “How to Locate Educational Information and Data.”

11 CG Wren and JR Wren, “Teaching of Legal Research, The” [1988] Law Libr. J.

12 Resolution 2198 (XXI), United Nations General Assembly

13 Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (reprint, Cambridge University Press 2008) p. 125

14 Ibid. p. 126

15 Anna Sergeevna Matveevskaya, “Modern Trends of European Union’s Migration Policy” (2016) 0 Krasnoyarsk Science 29.

16 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?”

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 percent of refugees are hosted in the Global South. In contrast, less than one percent 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, which has turned into a de facto solution to the global refugee crisis.

Theories

The proposed study can be defined as interdisciplinary in terms of combining international law with political science, international relations, and human rights to explore and discuss the current issues that are being faced under the refugee crisis. Theories associated with political science and international relations give rise to four main schools of thought: realism, liberalism, institutionalism, and constructivism19. These four mains schools examine through an interdisciplinary approach to examine the content of legal rules and institutions to explain legal institutions' origins and their effectiveness.

The methods have resulted in legal scholars reconceptualizing international law from a more general perspective. The proposed study uses theories of international legal process to conduct research and answer the developed research questions. The classical international legal process is studying how international law is practically applied, functions with international policy, and studies how international law can be improved.

According to O’Connell (1999)20, the classical International Legal Process “concentrates not so much on the exposition of rules and their content regarding 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 most heavily on liberalism, the school of thought which revolves around three interrelated principles;

1. Rejection of power politics as the only possible result of internal relations while also questioning realism principles, especially in terms of security and warfare21.

2. Emphasize mutual benefits and international cooperation22.

https://www.researchgate.net/publication/256031941_EU_Migration_Policy_in_the_Wake_of_the_Arab_Spring_What_Prospects_for_EU-Southern_Mediterranean_Relations

17 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.

18 Yasin Kerem Gumus, “What Explains Differences in Countries’ Migration Policies?” (2016) 4 International Journal of Research in Business and Social Science (2147-4478) 51.

19 J Samue Barkin, “Realist Constructivism” (2003) 5 International Studies Review 325.

20 Ibid. p. 326

21 M La Caze, “At the Intersection: Kant, Derrida, and the Relation Between Ethics and Politics” (2007) 35 Political theory 781.

22 Ibid. p. 781

3. Uses international organizations 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, play 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 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 while no hierarchy is enforced.

23 Ibid. p. 782
24 Ibid. p. 782

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Bibliography

Alexander C and Burke A “How to Locate Educational Information and Data” <http://agris.fao.org/agris-search/search.do?recordID=US201300333537> [Accessed 10th November 2016]

Anna Sergeevna Matveevskaya, “Modern Trends of European Union’s Migration Policy” (2016). 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” (1989). Law Libr. J. <http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/llj81&section=44> [Accessed 15th November 2016]

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” (1983)

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).

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” (2016) <https://www.theguardian.com/world/2016/jan/10/heathrow-stowaway-who-fell-to-death-identified-as-mozambican-migrant> [Accessed 20th November 2016]

“Image of Drowned Syrian Boy Echoes Around World - WSJ” (2016). <http://www.wsj.com/articles/image-of-syrian-boy-washed-up-on-beach-hits-hard-1441282847> [Accessed 14th November 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). Krasnoyarsk Science 29

Shores L. and Focke H., “Basic Reference Sources” <http://alagappauniversity.ac.in/downloads/examinations/modelQP/Dec2010DDE/CCLIS.doc> [Accessed 10th November 2016]

Sossin L, “Discourse Politics: Legal Research and Writing’s Search for a Pedagogy of Its Own” (1994). New Eng. L. Rev.

United Nations High Commissioner for Refugees (“UNHCR”), Refugees/Migrants Emergency Response- Mediterranean <http://data.unhcr.org/mediterranean/country.php?id=83> [Accessed 18th November 2016]

Wren C and Wren J, “Teaching of Legal Research, The” (1988). Law Libr. J.

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Hi, I am Alexandra Betts. I am a content creator, blogger, teacher and a poet as well. I started writing blogs when I was 16. To become a great writer, one requires courage, patience, consistency, and of course, a lot of reading. I like going to parties with friends, and yes, I love to cook!

Alexandra Betts
Alexandra Betts
Hi, I am Alexandra Betts. I am a content creator, blogger, teacher and a poet as well. I started writing blogs when I was 16. To become a great writer, one requires courage, patience, consistency, and of course, a lot of reading. I like going to parties with friends, and yes, I love to cook!
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