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    Open Borders, now! – Syrian migrants do not qualify for refugee status

    Posted by Ivo Cerckel on September 21st, 2015

    Last edited 22 September 2015, 09h54 GMT+8

    For applicants to the status of “humanitarian refugees”, i.e., “non-UN-Refugee-Convention refugees” or “extra-UN-Refugee Convention refugees”, to be assimilated to and thus to be treated in a similar way as applicants to UN-Refugee-Convention status, it is required that the persons to whom this similar treatment would be accorded are first classified as applicants to “humanitarian refugee” status and even Germany is no longer accepting this consequence of this classification.

    With this post I am calling for open borders and for an end to the EU hypocrisy which says that Syrian migrants as such qualify for refugee status. Under the present legislation, the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (civil-)war refugees, and thus Syrian migrants, as such DO NOT qualify for refugee status.

    1.
    “Laissez faire, laissez passer, le monde va de lui-même”.

    “Without a joint European plan, it’s every nation for itself”, reported Lucy Williamson on 18 September 2015 for the BBC in Croatia.

    Croatia is overwhelmed by number of refugees arriving in Croatia. Hungary is complaining about the refugees’ resistance to complying with the
    EU registration [qua persons, not qua refugees, entering the European Union?]
    requirement.

    While the politicians of Europe are squabbling about their irresponsibility, humanitarian refugees are faced with new humanitarian disasters on the outskirts of the EU and are being dumped by these same politicians onto each other’s country.
    Let me stress that the refugees are being dumped not by despicable – or not so? – people smugglers, but by the honourable – and definitely so? – EU member states of Hungary and Croatia onto each other’s borders and onto, respectively, the borders of Austria and Slovenia. Hungary is even calling in army reservists to “protect its Croatian border” – with barbed wire after having closed its Serbian border with the same barbed wire.

    And amidst the irresponsibility-squabble amongst its member states, the European Union (EU) has no clue what to do.

    Meanwhile, scholars in United-Nations refugee-law argue that the USA should take the lead in showing the old continent how to solve this crisis.

    “Laissez faire, laissez passer, le monde va de lui-même” – if there is no welfare state.

    STRUCTURE OF THIS POST

    2.
    With this post I am calling for open borders and for an end to the EU hypocrisy which says that Syrian migrants as such qualify for refugee status. Under the present legislation, the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (civil-)war refugees, and thus Syrian migrants, as such DO NOT qualify for refugee status.

    Persons fleeing war are not recognised as what in popular speech is called “political refugees” but are tolerated by some Leviathans on humanitarian grounds. It is true that the Convention definition of refugee has been expanded and that these developments are indicative of a widening of the circumstances in which persons may be said to be in need of international protection, but the developments do not constitute formal amendments to the Convention definition.

    I am quoting from books published last century which I inherited from a previous life. The new editions of two of these books, Dr. James C. Hathaway’s 1991 first edition of “The Law of Refugee Status” and Dr. Guy S. Goodwin-Gill’s 1996 second edition of “The Refugee in International Law”, are still available on Amazon.co.uk. Excerpts from the 2014 second edition of Hathaway’s book are available on Google Books. (1) (2)

    If the general principles changed this century, this post is completely wrong.

    The fact that the September 1979 United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol, was last reissued, not re-edited, in Geneva in December 2011 (3) seems to confirm that the general principles have not changed – at least had not (and were not expected to be?) changed (in the foreseeable future) in 2011.

    If I am wrong, so be it. I am myself a thalidomide refugee from the southern Low Countries who fifteen years ago found refuge in Southeast Asia. Perhaps this century has accorded some legal recognition to humanitarian refugees of which I am not aware. I am however very surprised when I hear Dr James C. Hathaway in an 17 September 2015 audio interview “Asylum: From World War II to Europe’s Refugee Crisis”, declaring, on the one hand, that the EU member states are ignoring the fact that the 1951 Convention and 1967 Protocol tell them how to act in this situation and declare, on the other hand, that persons fleeing the Syrian war do not only, “fit the bill”, i.e., fall under the definition, of refugee claimant but also “fit the bill” of refugee. Hathaway’s own writings seem to contradict this. But then again the writings of Hathaway which I am invoking date from last century.

    Goodwin-Gill and Hathaway write that apart from the refugees as defined by the 1951 Convention, there is a category called “humanitarian refugees”. Hathaway stresses that this category of “humanitarian refugees” is a category of refugees which only exists if the category has been instituted by voluntary initiatives which are not subject to the formal constraints of the Convention-based protection scheme and that states have therefore a substantial margin of discretion in determining the scope of their efforts with a view to providing protection programmes and burden-sharing arrangements

    Today, mid-September 2015, the European Union is still unable to agree to admit humanitarian refugees who landed in Greece, a part of the EU territory, onto its whole territory, Hungary and Croatia (both EU members) having closed their borders to those refugees who landed in Greece and travelled over the territory of non-EU-members Macedonia and Serbia to their (Hungary’s and Croatia’s) borders. No, the EU is not only unable to admit humanitarian refugees, but the EU leading member state, the EU boss, Germany which had said that it would admit Syrians fleeing the war as humanitarian refugees is now closing its borders to all refugees, including those humanitarian refugees. Germany has thus still not taken the initiative to create the class of humanitarian refugees. And then the world is surprised that Hungary and Croatia are dumping humanitarian refugees onto each other’s borders and onto, respectively, the borders of EU members, Austria and Slovenia.

    Today, mid-September 2015, we see that these voluntary initiatives creating a framework for the protection of humanitarian refugees are stubbornly not being taken, let alone implemented, by the EU Leviathans.

    After section 3 will have demonstrated that under the current applicable (United Nations) legislation, persons fleeing war are not considered to be refugees in the sense of the U.N. Refugee Convention,
    section 4 will discuss the definition of humanitarian refugees.

    Section 5 examines whether this definition is being implemented by the EU member states.

    After section 5 will have given a negative response to the question posed, section 6 will turn to the EU initiatives on the subject.
    The section, section 6, will demonstrate that Martin Schulz, president of the EU parliament, says that the bureaucrats of the EU commission and EU parliament are more efficient than the national bureaucrats from whom they emanate, and that the former bureaucrats, i.e., the bureaucrats of the EU parliament and commission, are entitled to impose upon the EU member states the special protection programmes or regulatory schemes and the burden-sharing arrangements which, says Hathaway pp. 21-22, should have been concluded between states of reception and resettlement countries.
    A summit of the EU council, not of the bureaucrats of the EU parliament nor of the bureaucrats of the EU commission, has been called for Wednesday 23 September 2015.

    These protection programmes, regulatory schemes nor burden-sharing arrangements have been instituted, c.q., agreed upon.

    In a recent press article, Dr James C. Hathaway is nevertheless quoted not as calling for the overhaul of refugee law so as to include humanitarian refugees but only as calling for a new mechanism to share the responsibilities of protection around the world. The USA needs to show leadership on that, says Hathaway.

    Section 7 will argue that the USA cannot possibly, as proposed by Hathaway, convince the EU to adopt, c.q., conclude, the special protection programmes or regulatory schemes and the burden-sharing arrangements which, says Hathaway pp. 21-22, should have been enacted by, c.q., concluded between the EU states of reception and resettlement and which the German boss of the EU parliament now wants his parliament and the EU commission to impose upon the EU member states through a mechanism for which Hathaway wants the USA to take the lead.

    THE DEFINITION OF REFUGEE

    3.
    This section 3 demonstrates that under the current applicable (U.N.) legislation, persons fleeing war are not considered to be refugees.

    When I – Ivo – speak about refugee, I mean anyone who’s fleeing the country where she’s living.
    The problem with my concept of refugee is that in normal legal parlance the concept – as opposed to my concept – is restricted to refugees as defined by the UN Refugee Convention.
    Hathaway writes that in some cases, there are conditional and discretionary programmes whereby states recognise as legitimate the protection needs of a class of refugee outside the scope of the Convention and afford protection to this class.
    As Goodwin-Gill writes, states resist formally classifying such persons as refugees but accord them refuge.
    Hathaway confirms p. 137 that refugee law is not coterminous with international human rights law
    Still, Hathaway calls persons fleeing the Syrian war “refugees”.
    Should we not call these refugees “non-Convention refugees” or “extra-Convention refugees”?

    What in popular speech is called a “political refugee” is called by Hathaway “refugees whose fight is motivated by persecution rooted in civil or political status”.

    What in popular speech is called a “political refugee” is called by lawyers (and thus by Hathaway) a “refugee” in the sense Article 1 A (2) of the United Nations 1951 Convention Relating to the Status of Refugee and the 1967 Protocol on the Status of Refugees.

    Article 1 A (2) of the United Nations 1951 Convention Relating to the Status of Refugee – still – says that for the purposes of the present Convention, the term “refugee” shall
    apply to any person who:
    “As a result of events occurring before 1 January 1951 and 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. ”
    http://www.unhcr.org/3b66c2aa10.html

    The 1967 Protocol relating to the Status of Refugees eliminated the restriction in the Convention that the claim relates to a pre-1951 event in Europe, thereby expanding the scope of the Convention definition to include refugees from all regions of the world. (Hathaway, op. cit., 1991, 1st ed., pp. 9-10)

    “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, says the text of this article 1 A (2).

    ”[This means that] even after the elimination of the temporal and geographic limitation only persons whose migration is prompted by a fear of persecution on the grounds of civil or political status come within the scope of the Convention-based protection system.” (Hathaway, op. cit., 1991, 1st ed., p.10)

    “Refugees whose fight is not motivated by persecution rooted in civil or political status are excluded from the rights regime established by the Convention.” (Hathaway, op. cit., 1991, 1st ed., p.11)

    “While the refugee Convention was conceived as a response to victims of war, it was not intended that all those displaced by violent conflict should enjoy refugee status. […]. Victims of war and conflict are therefore not refugees UNLESS they are subject to differential victimisation based on civil or political status.” (Hathaway, op. cit., 1991, 1st ed,, p.185)

    “This is so when the violence is not simply generalised but is rather directed toward a group defined by civil or political status; or, if the war or conflict is non-specific in impact, where the claimant’s fear can be traced back to specific forms of disenfranchisement within the society of origin.” (Hathaway, op. cit., 1991, 1st ed, p.188)

    “[Courts have therefore] shown a marked reluctance to recognise as refugee persons whose apprehension of risk is borne out in the suffering of a large number of their follow citizens,
    [… except when] the claimant is able to demonstrate that she been “personally singled out” for persecution.” (Hathaway, op. cit., 1991, 1st ed., p.90)

    After an 8 September 2015 article had quoted Hathaway as saying that the duty of fortress Europe is not to admit but rather not to turn back refugees and that the building of the [Hungarian] fence that is a barrier to entry is a clear example of turning back, which is what is prohibited (4), Dr Hathaway is confirming in a 17 September 2015 audio interview “Asylum: From World War II to Europe’s Refugee Crisis” that it is impermissible [for Hungary] to push back refugees or persons who claim to be refugee. Professor Hathaway adds that Syrians and Afghans fit the bill. (5)

    If Hathaway means that Syrians who claim to be refugees fit the bill, I have no problem with this statement. However in the absence of special protection programmes recognising Syrian humanitarian refugees, on the one hand, and burden-sharing arrangements concluded between states of reception and resettlement countries, on the other hand (see section 4), I do not see how fortress Europe could consider them as applicants to refugee status as defined by art 1 A (2) of the 1951 Refugee Convention as amended by the 1967 Protocol.

    HUMANITARIAN REFUGEES

    4.
    After section 3 demonstrated that under the current applicable (U.N.) legislation, persons fleeing war are not considered to be refugees,
    this section 4 discusses the definition of humanitarian refugee.
    Section 5 will examine whether this definition is being implemented in the EU member states.
    As the answer to the question posed in section 5 will turn out to be negative, section 6 will turn to the EU initiatives trying to achieve the same goal. Section 7 will discuss Hathaway’s proposal for the USA to take the lead in showing the planet how to solve this crisis which, says Hathaway, should not be a crisis as it has a solution in the application of the 1951 Convention and 1967 Protocol on the Status of Refugee.

    Apart from the category of what in popular speech is called a “political refugee”,
    apart from the category of what is called by Hathaway “refugees whose fight is motivated by persecution rooted in civil or political status”,
    there seems to be another category, that of “humanitarian refugees”.

    As Hathaway says, even in those states which have not formally committed themselves to the application of an expanded concept of refugee status, there is a consistent practice of recognising as legitimate the protection needs of a class of refugee outside the scope of the Convention. (Hathaway, op. cit., 1991, 1st ed., p.24)

    Ian A. McDonald and Nicholas J. Blake wrote in 1991 in their “Macdonald’s [UK of NI-and-GB] Immigration Law and Practice” under reference to paragraphs 164 to 166 of the quoted UNHCR Handbook (3, again) whose unchanged text was still included in the December 2011 reissuance of the Handbook, that:
    “Persons fleeing from the hardship of civil war are not as such Convention refugees.” (6)

    Guy S. Goodwin-Gill says on p.134 of the 1996 second edition of his quoted book that there is however a practice whereby States provide protection to persons fleeing situations of grave and urgent necessity, even as states resist formally classifying such persons as “refugees” when outside the terms of 1951 Convention/1967 Protocol, and do not accept any obligation to grant them asylum or provide any particular durable solution. (1, again)
    “The practice shows that states commonly accord refuge in such cases, and thereby confirm essential humanitarian principles deriving from a variety of sources, including the victims of armed conflicts and to civilians caught up in or fleeing war”, continues Goodwin-Gill on the same page.

    As Hathaway explains:
    “Refugees in flight from situations of generalised or serious disturbances of public order are often protected by special programmes or regulatory schemes or by burden-sharing arrangements concluded between states of reception and resettlement countries.” (Hathaway, op. cit., 1991, 1st ed., pp.21-22)

    “Because these voluntary initiatives are not subject to the formal constraints of the Convention-based protection scheme, states have a substantial margin of discretion in determining the scope of their efforts.
    “It is nonetheless striking to note the virtual unanimity of state practice in affording some protection to refugees outside the formal scope of the Convention.
    “In general, while European states have constructed policies that safeguard national sovereignty over the admission of refugees in flight from broadly-based disturbances, there is a general practice of not returning persons to states in which there is a significant risk of danger due to internal upheaval or armed conflict.” (Hathaway, op. cit., 1991, 1st ed., p.22)

    “In sum […] there is a consistent practice of recognising as legitimate the protection needs of a class of refugee outside the scope of the Convention.” (Hathaway, op. cit., 1991, 1st ed., p.24)

    These are conditional and discretionary programmes, says Hathaway (op. cit., 1991, 1st ed., p. 24).

    EU MEMBER STATES AND HUMANITARIAN REFUGEES

    5.
    After section 4 discussed the definition of humanitarian refugees,
    this section 5 examines whether this definition is being implemented by the EU member states.
    As the answer to the question posed in this section 5 will turn out to be negative, section 6 will turn to the EU initiatives trying to achieve the same goal.
    Section 7 will discuss Hathaway’s proposal for the USA to take the lead in showing the planet how to solve this migration crisis which, says Hathaway, should not be a crisis as it has a solution in the application of the 151 Convention and 1967 Protocol on the Status of Refugee.

    The question is: Is the definition of humanitarian refugees being implemented by the EU member states?

    The answer to the question can be very short: Even Germany which had said it would accept persons fleeing the Syrian war as humanitarian refugees is now closing its borders – also to humanitarian refugees. The definition of humanitarian refugees is thus NOT being implemented by the EU member states.

    As we saw in section 4, Goodwin-Gill and Hathaway say that apart from the refugees as defined by the 1951 Convention, there is a category called “humanitarian refugees”, Hathaway says that this category of refugees has been instituted by voluntary initiatives which are not subject to the formal constraints of the Convention-based protection scheme and that states have therefore a substantial margin of discretion in determining the scope of their efforts.

    Germany, which had taken this initiative for persons fleeing the Syrian war, has now put an end to it by closing its borders.

    Today, mid-September 2015, the European Union is still unable to agree to admit humanitarian refugees who landed in Greece, a part of the EU territory, onto its whole territory, Hungary and Croatia (both EU members) having closed their borders to those refugees who landed in Greece and travelled over the territory of non-EU-members Macedonia and Serbia to their (Hungary’s and Croatia’s) borders. While the politicians of Europe are squabbling about their irresponsibility, humanitarian refugees are faced with new humanitarian disasters on the outskirts of the EU and are being dumped by these same politicians onto each other’s borders.

    Let me stress again that the refugees are being dumped not by despicable – or not so? heroic, should I say? – people smugglers, but by the honourable – and definitely so? or definitely not heroic? – EU member states of Hungary and Croatia onto each other’s borders and onto the borders of Austria and Slovenia. Hungary is even calling in army reservists to “protect its Croatian border” and no longer only its Serbian border – with barbed wire.

    EU INSTITUTIONS AND HUMANITARIAN REFUGEES

    6.
    Today, mid-September 2015, we see that the voluntary initiatives instituting protection schemes for refugees outside the UN Convention are stubbornly not being taken, let alone implemented, by the EU Leviathans.

    As we saw in section 4, Hathaway says that refugees in flight from situations of generalised or serious disturbances of public order are often protected by special programmes or regulatory schemes or by burden-sharing arrangements concluded between states of reception and resettlement countries.

    In a 18 September 2015 interview with Le Monde, Martin Schulz, president of the EU parliament (which thinks of itself as the “European parliament”), says that if the EU member states are allowed to themselves deal with the migration crisis, nothing happens and that it is therefore up to EU commission and EU parliament to act at exceptional speed as the situation is exceptional. (7)
    As if those bureaucrats would be more efficient than the national bureaucrats from whom they emanate.

    Schulz thus recognises that no special programmes or regulatory schemes, as meant by Hathaway, have been concluded.

    The present irresponsible situation in EU members Hungary and Croatia who are blaming each other for not accepting refugees and who are dumping refugees onto each other’s borders and on the borders of, respectively, Hungary and Slovenia, demonstrates that no burden-sharing as meant by Hathaway is occurring between between states of reception and resettlement countries.

    The present irresponsible situation in Germany which has closed its intra-Schengen borders demonstrates that no arrangements have been concluded between states of reception and resettlement countries.

    “Without a joint European plan, it’s every nation for itself”, reported Lucy Williamson on 18 September 2015 for the BBC in Croatia. (8)

    When Schulz is saying that the bureaucrats of the EU commission and EU parliament are more efficient than the national bureaucrats from whom they emanate, does he mean that the former bureaucrats are entitled to impose on the EU member states the arrangements which the latter bureaucrats are unable to conclude?

    An informal emergency summit, i.e., a summit of the EU council, not of the EU parliament or EU commission, has been called for Wednesday 23 September 2015, Among the factors at issue is the question of compulsory EU refugee quotas, to take the load from Germany and Sweden, which are bearing the brunt of the influx of newcomers, says The Guardian. (9)

    Der Spiegel draws attention to the fact that the fact that this is an informal summit means that the decisions will be taken by qualified majority not by unanimity so that the countries opposing the relocation of refugees – above all Hungary, the Czech republic, Slovakia and Poland – can be outvoted. (10)

    The Guardian nevertheless says that it is not clear Wednesday’s summit, the second emergency session in a week after failing to agree on quotas last Monday can achieve. The Guardian goes on to quote Robert Fico, the Slovakian prime minister, as saying that he would not be “dictated to” and would not observe any quota that was imposed and to argue that the Czechs and the Hungarians are blaming the Germans for the mess.

    Does Fico’s statement that he would not be “dictated to” and would not observe any quota that was imposed not confirm my inference that when Schulz is saying that the bureaucrats of the EU commission and EU parliament are more efficient than the national bureaucrats from whom they emanate, he, Schulz, means that the former bureaucrats are entitled to impose on the EU member states the arrangements which the latter bureaucrats are unable to conclude?

    Some news just in:
    Reuters says that EU Council president Donald Tusk, who chairs European Union summits, said on Twitter on Sunday following a weekend visit to Jordan and Egypt that the EU needed to help Syrian refugees find a better life closer at home. (11)

    Here’s the tweet:

    Donald Tusk Verified account ?@eucopresident
    9:01 p.m. GMT+8 – 20 Sep 2015
    Visit to Za’atari refugee camp in Jordan. We must help Syrian refugees to a better life closer to their homes
    https://twitter.com/eucopresident/status/645583508761669632

    Now you know, the EU bureaucrats don’t want refugees in the EU.

    REFUGEES DO NOT NEED USA EXAMPLE

    7.
    After having said
    on p. 11
    “The Convention has been expanded through […]. While these developments do not constitute formal amendments to the Convention definition, they are nonetheless indicative of a widening of the circumstances in which persons may be sad to be in need of international protection”,
    and
    on p. 24 that there is a consistent practice of recognising as legitimate the protection needs of a class of refugee outside the scope of the Convention,

    Hathaway goes on to observe on p. 137 of the 1991 first edition of “The Law of Refugee Status” that:
    “[Some] critics of refugee law argue that refugee law should embrace […] persons in flight from […] war […]. It is suggested by some that refugee law is essentially coterminous with international human rights law, or even with humanitarianism, such that any person whose basic dignity is jeopardised should be entitled to seek protection abroad. This general perspective collides with the implicit assumption of conventional refugee law that unless excluded from the national community, one should vindicate claims to liberties and entitlements from within the state. So long as the victims of a generalised disaster are not denied membership in the body politic, they are expected to work to address their needs through existing structures or by creating or rebuilding internal mechanisms for redress. ”

    In a 11 September 2015 press article, Hathaway, now director of the Programme in Refugee and Asylum Law at the University of Michigan, is therefore quoted as saying that the United States of America should accept a large number of refugees in order to help convince other nations to pitch in. “Yes, it would be nice to resettle some more refugees today,” said Hathaway. “But the important thing that they [the USA] should be doing is leading—not a new refugee convention, but a new mechanism to share the responsibilities of protection around the world. The US needs to show leadership on that.” (12)

    I submit that by not calling for a new refugee convention, Dr Hathaway is merely perpetuating the EU hypocrisy which says that Syrian migrants as such qualify for refugee status, whereas, as he writes on p. 97 of the 1991 first edition of “The Law of Refugee Status”
    in the final paragraph of Chapter 3 “Well-Founded Fear”,
    only if persons like the claimant may face serious harm in her country,
    and if -AND HERE IT COMES – that risk is grounded in their civil or political status,
    then in the absence of effective national protection he is properly considered to be a Convention refugee.

    Ivo adds to this Hathaway-quote:
    “Nor can he be considered to be a humanitarian refugee, as in the absence of legislation classifying Syrian war refugees as humanitarian refugees and in the absence – a fortiori – of legislation assimilating the refugees of this class of humanitarian refugees to Convention refugees. no humanitarian-refugee status can be granted to this class.”

    In the 17 September 2015 audio interview “Asylum: From World War II to Europe’s Refugee Crisis”, Hathaway nevertheless seems to be calling persons fleeing the Syrian war not only refugee claimants, but also refugees. (5) This implies that Hathaway means that under the present UN legislation, some of them at least should be granted refugee status. But in the absence of legislation assimilating (Syrian) humanitarian refugees to Convention refugees. no such status can be granted to (Syrian) refugee claimants.

    As I said at the outset of section 3:
    When I – Ivo – speak about refugee, I mean anyone who’s fleeing the country where she’s living.
    The problem with my concept of refugee is that in normal legal parlance the concept – as opposed to my concept – is restricted to refugees as defined by the UN Refugee Convention.
    Hathaway writes that in some cases, there are conditional and discretionary programmes whereby states recognise as legitimate the protection needs of a class of refugee outside the scope of the Convention and afford protection to this class.
    As Goodwin-Gill writes, states resist formally classifying such persons as refugees but accord them refuge.
    Hathaway confirms p. 137 that refugee law is not coterminous with international human rights law
    Still, Hathaway calls persons fleeing the Syrian war refugees,
    Should we not call these refugees “non-Convention refugees” or “extra-Convention refugees”?
    “Bis repetita placet!”

    How can Hathaway argue in the 17 September audio interview that EU nations are ignoring the fact that the 1951 Convention tells them how to act with refugees? (5)
    The Convention tells them only how to act with Convention refugees.
    Not how to act with “non-Convention refugees” or “extra-Convention refugees”.

    Yes, it could be argued that “non-Convention refugees” or “extra-Convention refugees” should be assimilated to and thus be treated in a similar way as Convention refugees. But for that to happen, it is first required that the persons to whom this similar treatment is accorded are classified (hi, Immanuel Kant, you bastard!) as applicants for “humanitarian refugee” status, i.e. “non-Convention” or ”extra-Convention” “refugee”, status. After that classification, they must be assimilated to and accorded the same treatment as applicants for (Convention-) refugee status and even Germany is no longer accepting this consequence of this classification.

    The quoted 11 September 2015 article (12) quoting Hathaway as saying that the USA should take the lead in admitting refugees and therefore in convincing the EU to do the same comes on the heels of the quoted 8 September 2015 article (4) quoting Hathaway as saying that the duty of fortress Europe is not to admit but rather not to turn back refugees and that the building of the {Hungarian] fence that is a barrier to entry is a clear example of turning back, which is what is prohibited.

    As Ernie Bevin (1881 – 1951), former UK foreign secretary, observed
    “I dream of the day [before the First World War] when a British citizen could go to Victoria station and buy a ticket to anywhere in the world without worrying about papers.”
    http://www.publications.parliament.uk/pa/cm199899/cmhansrd/vo990629/debtext/90629-15.htm

    As Hathaway says at the start of the quoted 17 September 2015 audio interview, it’s only 100 years ago
    [Ivo: when the gold standard, which had been in force since the Napoleonic wars, was being repealed and the USA central bankster, the Federal Reserve, was being instituted]
    that border controls were erected by [backward] nation-states in the western hemisphere which wanted to protect the common ethnic stock of their subjects.

    Contrast this freedom enjoyed before the First World War, of which Bevin dreamt, to good (or rather no longer so good) old Guy Verhofstadt, former prime minister of the southern Low Countries, now a member of the EU parliament, who in a 17 September 2015 tweet said he wanted refugees to be treated as merchandise which must be distributed among EU member states.

    Guy Verhofstadt ?@GuyVerhofstadt
    Commission & Parliament are united in supporting fairer distribution #refugees already in Europe. The ball is now in court of Member States
    https://twitter.com/GuyVerhofstadt/status/644438350582149121

    Repeal passports and immigration law!
    Refugee law will become without object!

    As Guy Goodwin-Gill, writes people fleeing war are not recognised as refugees but are tolerated by other Leviathans on humanitarian grounds – except in Hungary, Croatia, Slovenia, Austria and … Germany

    “Laissez faire, laissez passer, le monde va de lui-même” – if there is no welfare state.

    Ivo Cerckel
    ivocerckel@siquijor.ws

    NOTES

    (1)
    These are the three books from a previous life:

    James C. Hathaway, “The Law of Refugee Status”, Toronto & Vancouver, Butterworths, 1991, 1st ed.

    Guy S. Goodwin-Gill, “The refugee in international law”, Oxford, Clarendon Press, 1996, 2nd ed.

    Ian A. Macdonald and Nicholas J. Blake, “Macdonald’s Immigration Law and Practice” , London, Butterworths, 1991, 3rd ed.

    (2)
    On Google Books, I find

    Guy S. Goodwin-Gill, Jane McAdam, “The refugee in international law”, Oxford University Press, 2007, 3rd ed.
    https://www.google.co.uk/search?tbo=p&tbm=bks&q=isbn:0199207631
    the inside of the book can be searched, but no full pages have been excerpted

    A key features of this book is that it is the completely revised third edition of the leading text in the field of international refugee law, bringing the case law and analysis up to date, including the 2004 EU Qualification Directive and other EU harmonisation measures, say the publisher, Oxford University Press.
    http://ukcatalogue.oup.com/product/9780199281305.do

    James C. Hathaway, Michelle Foster , “The Law of Refugee Status”, Cambridge University Press, 2014, 2nd. ed
    https://books.google.co.uk/books?isbn=1107012511
    not all pages are included . even the table of contents is not complete.

    Cambridge UP, the publisher of Hathaway’s 2014 second edition, says that this
    second edition builds on the strong critical focus and human rights orientation of the first edition, but undertakes an entirely original analysis of the jurisprudence of leading common law and select civil law states.
    http://www.cambridge.org/gb/academic/subjects/law/human-rights/law-refugee-status-2nd-edition

    This seems to confirm that the general principles have not changed. I am reassured by the fact that the September 1979 United Nations Human Commissioner for Refugees reissued in December 2011 its September 1979 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, after having reedited it in January 1992l

    (3)
    The September 1979 United Nations Human Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
    HCR/IP/4/Eng/REV.1
    Reedited, Geneva, January 1992,
    http://www1.umn.edu/humanrts/instree/refugeehandbook.pdf
    Reissued Geneva, December 2011
    http://www.refworld.org/docid/4f33c8d92.html

    CHAPTER V – SPECIAL CASES
    A. War refugees
    164. Persons compelled to leave their country of origin as a result of international or national
    armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.22 They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.23
    165. However, foreign invasion or occupation of all or part of a country can result–and
    occasionally has resulted–in persecution for one or more of the reasons enumerated in the 1951
    Convention. In such cases, refugee status will depend upon whether the applicant is able to show
    that he has a “well-founded fear of being persecuted” in the occupied territory and, in addition,
    upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during the armed
    conflict, and whether such protection can be considered to be effective.
    166. Protection may not be available if there are no diplomatic relations between the
    applicant’s host country and his country of origin. If the applicant’s government is itself in exile,
    the effectiveness of the protection that it is able to extend may be open to question. Thus, every
    case has to be judged on its merits, both in respect of well-founded fear of persecution and of the
    availability of effective protection on the part of the government of the country of origin.

    (4)
    Can Hungary and Denmark legally turn away refugees?
    International law grants refugees the rights not be sent back to harm and not to be punished for illegally entering countries that have signed a treaty.
    By Lonnie Shekhtman, Staff September 8, 2015
    http://www.csmonitor.com/World/Europe/2015/0908/Can-Hungary-and-Denmark-legally-turn-away-refugees
    SNIP
    “The duty is not to admit, but rather not to turn back,” said Prof. Hathaway in an email interview. “The building of the fence that is a barrier to entry is a clear example of turning back, which is what is prohibited.”

    (5)
    Audio interview
    “Asylum: From World War II to Europe’s Refugee Crisis”
    Thursday, September 17, 2015
    http://www.thetakeaway.org/story/asylum-world-war-ii-europes-refugee-crisis/

    (6)
    Ian A. Macdonald and Nicholas J. Blake, “Macdonald’s Immigration Law and Practice” , London, Butterworths, 1991, 3rd ed., p. 295
    Persons fleeing from the hardship of civil war are not as such Convention refugees [says the UNHCR (United Nations High Commisioner for Refugees) Handbook for Determining Refugee Status and Guidelines on International Protection] But where the governing authority of the country uses unlawful means to terrorise an ethnic, religious, social or political authority, this can be the occasion for the very gravest form of persecution.

    (7)
    Martin Schulz : « Quand on laisse les Etats seuls s’occuper de la crise migratoire, rien ne bouge »
    Le Monde.fr | 18.09.2015 à 12h33 • Mis à jour le 18.09.2015 à 12h47 http://www.lemonde.fr/europe/article/2015/09/18/martin-schulz-on-voit-ou-on-en-arrive-si-on-laisse-le-champ-libre-aux-interets-nationaux_4762494_3214.html
    SNIP
    On voit que, quand on laisse les Etats seuls s’occuper de la crise migratoire, rien ne bouge. Les institutions communautaires, la Commission et le Parlement doivent dès lors agir. A une vitesse exceptionnelle, parce que la situation est exceptionnelle.

    (8)
    Without a joint European plan, it’s every nation for itself”, reports Lucy Williamson for the BBC in Croatia
    Migrant crisis: Neighbours squabble after Croatia U-turn
    18 September 2015
    http://www.bbc.com/news/world-europe-34291648

    (9)
    EU leaders to hold refugee summit
    Donald Tusk calls special meeting, after pressure from German chancellor, amid deepening splits in Europe over arrivals Ian Traynor in Brussels
    Thursday 17 September 2015 18.18 BST Last modified on Friday 18 September 2015 00.02 BST
    http://www.theguardian.com/world/2015/sep/17/eus-war-of-words-about-refugees-increases-volume

    (10)
    Gipfel zur Flüchtlingskrise: Jetzt sollen die EU-Chefs persönlich ran
    Die osteuropäischen Länder sperren sich gegen die Aufnahme von Flüchtlingen, nun wächst der Druck auf die Verweigerer. Die EU-Regierungschefs wollen sich zu einem Sondergipfel treffen – und plötzlich ist auch Polen zum Umdenken bereit.
    Von Markus Becker, Peter Müller und Christoph Schult, Brüssel
    Donnerstag, 17.09.2015 – 19:20 Uhr
    http://www.spiegel.de/politik/ausland/eu-gipfel-zur-fluechtlingskrise-der-druck-auf-die-verweigerer-waechst-a-1053472.html
    SNIP
    Die Blockiererländer – allen voran Ungarn, Tschechien, die Slowakei und Polen – könnten also überstimmt werden. Ein formeller Gipfel der Staats- und Regierungschefs hätte dagegen einstimmig entscheiden müssen.

    (11)
    Refugee crisis to test EU at summit of divided leaders
    BRUSSELS/ LEIPZIG, Germany | By Julia Fioretti and Gernot Heller
    Mon Sep 21, 2015 2:27am BST
    http://uk.reuters.com/article/2015/09/21/uk-europe-migrants-idUKKCN0RK0GX20150921

    (12)
    America Once Accepted 800,000 War Refugees. Is it Time to Do That Again?
    To solve the Syrian refugee crisis, experts say the United States should take a page from its post-Vietnam playbook.
    —By Max J. Rosenthal
    | Fri Sep. 11, 2015 2:41 PM EDT
    http://www.motherjones.com/politics/2015/09/syria-refugees-europe-vietnam
    SNIP
    But even if the United States doesn’t accept a large number of refugees—the 10,000 that will now be allowed into the United States is about half the number of refugees who arrived in Munich from Hungary last weekend—merely taking action could help convince other nations to pitch in. “Yes, it would be nice to resettle some more refugees today,” said James C. Hathaway, the director of the Program in Refugee and Asylum Law at the University of Michigan. “But the important thing that they should be doing is leading—not a new refugee convention, but a new mechanism to share the responsibilities of protection around the world. The US needs to show leadership on that.”

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