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    Refugee Nation and Paris Attacks

    Posted by Ivo Cerckel on December 3rd, 2015

    THIS BLOG POST IN A NUTSHELL

    The 13 November 2015 Paris Attacks have reinforced European and USA anti-refugee sentiment.

    Jason Buzi, a San Francisco real-estate billionaire, has proposed a “radical solution” to the world’s crisis of refugees who have nowhere to call home: simply create a “Refugee Nation”, new country for refugees to live in.

    Two objections to Refugee Nation:
    States may sell territory, but they don’t and won’t sell sovereignty.
    The Nation might become a dumping ground or prison camp for refugees.

    As to the first objection, one century after the 1919 Versailles Treaty, we can return to the 1803 Louisiana and the 1867 Alaska examples.

    As to the prison-camp objection, what about Greece in early December 2015? Is that not also a prison camp? If Schengen collapses and the Refugee Nation is established in a European enclave as proposed by RT, refugees would not be worse off than Caucasians.

    Fresh from the press:
    Exclusive: leaked document reveals EU plans to suspend Schengen for two years
    Comments by Steve Peers
    Wednesday, 2 December 2015
    http://eulawanalysis.blogspot.be/2015/12/exclusive-leaked-document-reveals-eu.html

    I do immediately concede that more thinking is required about those two objections, about those two quite fundamental problems that make the Refugee Nation model unworkable in its present form, especially about the second objection.

    OUT OF THE NUTSHELL

    There are 59.5 million people around the world who have been forcibly displaced from their homes, too many of whom live in desperate poverty.

    The refugee crisis has triggered political panic in Europe because two migrants who entered the European Union (EU) through Turkey and the Greek island of Leros were involved in the 13 November 2015 Paris Attacks.

    At a EU Summit in Brussels on Sunday 29 November 2015, Turkey promised to help stem the flow of migrants from the Turkish shores into the Greek islands in return for cash, visas and renewed talks on joining the EU in a deal struck that the Turkish prime minister called a “new beginning” for the uneasy neighbours. The only problem is that asylum seekers cannot be recognised as refugee in Turkey, due to the fact that Ankara, the capital of Turkey, has introduced a so-called “temporary protection” system, which does not stipulate that the refugees receive a reliable legal status. (1)

    The deal offers visa-free travel for Turk citizens throughout the Schengen zone, the passport-free travel zone established in 1985, by October 2016, but if the deal fails, said zone will not survive. If the zone does not survive – until October 2016 – , what’s the use of having the right of free travel throughout the zone?

    Fresh from the press:
    Exclusive: leaked document reveals EU plans to suspend Schengen for two years
    Comments by Steve Peers
    Wednesday, 2 December 2015
    http://eulawanalysis.blogspot.be/2015/12/exclusive-leaked-document-reveals-eu.html

    The Guardian reported on 26 November 2015 that France has sought a derogation from the European Convention on Human Rights for the duration of the state of emergency which it decreed after the Paris Attacks and that human rights groups have warned that this state of emergency could lead to abuses and must be closely monitored. Instances of armed police breaking down front doors with battering rams in the middle of the night, searching homes, handcuffing residents and placing people under house arrest without warrants or judicial oversight have multiplied in the two weeks since the Paris attacks that killed 130 people and injured more than 300. (2)

    Will the inhabitants of France soon be forced to flee the territory of the republic and seek asylum outside that territory?

    The authoritarian tendencies of Turkish president Recep Tayyip Erdogan,
    who on 24 November 2015 shot down a Russian plane
    (to protect supplies of oil from the Islamic State of Iraq and the Levant (ISIL),
    said Vladimir Putin, president of the Russian Federation which is not a EU member, on 30 November 2015,
    Russia’s defence ministry adding on 02 December 2015 it had proof that Erdogan and his family were benefiting from the illegal smuggling of oil stolen from its rightful owners in ISIL-held territory in Syria and Iraq),
    made some EU members reluctant to bow too deeply to Turkey as there are serious concerns about Erdogan government’s respect for democracy and the rule of law. But the EU leaders would have had no other choices but to agree to the 29 November 2015 deal.

    I said in my 21 September 2015 post “Open Borders, now! – Syrian migrants do not qualify for refugee status” that 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.

    And I went on to say that 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. I now add that neither will French asylum seekers qualify for refugee status.

    I therefore called in my 21 September 2015 post 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, I concluded.
    http://bphouse.com/honest_money/2015/09/21/syrian-migrants-do-not-qualify-for-refugee-status-open-borders-now/

    In order to find an answer to the problem of the 59.5 million people around the world who have been forcibly displaced from their homes, too many of whom live in desperate poverty, Jason Buzi, a San Francisco real-estate billionaire, has proposed this summer (end of July 2015) what he calls a “radical solution” to the world’s crisis of refugees who have nowhere to call home: simply create a new country for them to live in. He wants to create a Refugee Nation, to create a new country to house all the world’s refugees.

    The idea is that if we could give them a state of their own, at least they’d have a place to live in safety and be allowed to live and work like everybody else.

    There is a misconception, says Buzi, that every inch of habitable land on Earth is taken.

    Mr Buzi suggests that a country with uninhabited islands might be willing to let some go for a sum. He talks about countries with small populations that might be willing to let people live with them in exchange for money, such as the Caribbean island state of Dominica.

    There are, he continues, thousands of uninhabited islands that are often available for sale to private individuals. The solution would consist in procuring a single large island, or a series of islands. (3)

    TWO OBJECTIONS

    Professor James C. Hathaway, director of the Programme in Refugee and Asylum Law at the University of Michigan Law School, whom I quoted already in my quoted 21 September 2015 post “Open Borders, now! – Syrian migrants do not qualify for refugee status”, says that there are two quite fundamental problems that make the Refugee Nation model unworkable in its present form. (4)

    ONE
    States may sell territory, but they don’t and won’t sell sovereignty. So the idea that the new ‘home’ could give out real citizenship to those who go there is not viable.

    TWO
    If a country did sell sovereignty, and any refugee could become a citizen, that might create other problems. The Refugee Convention would allow any and every state to force a refugee to go there, the Refugee Nation might become a dumping ground where refugees would face the Gaza-Strip risk, risk which results in refugees being trapped in what are effectively large-scale prison camps, says Hathaway, pointing to Australia, which has leased land on Pacific island nations to house asylum-seekers.

    A related problem is that in a globalised world, given freedom of choice, people ultimately want to choose where they live, and are likely to seek to move to where their friends, family and greatest opportunities lie, adds Professor Alexander Betts, director of the Refugee Studies Centre at Oxford University.

    ONE AND TWO

    These two quite fundamental problems make the Refugee Nation model unworkable in its present form, says Dr Hathaway.

    AS TO THE FIRST OBJECTION

    The first objection is that states may sell territory, but they don’t and won’t sell sovereignty,

    It is not uncommon in international law that one state cedes a piece of territory to another by treaty, says Prof. Martin Dixon. (5)

    Cession is a process (“une opération”) through which one state renounces to the benefit of or in favour of another to the rights and titles which it enjoyed until then over a given territory
    (“la cession est une opération par laquelle un Etat renonce en faveur d’un autre, aux droits et titres qu’il possédait jusque-là sur un territoire donné”),
    says Prof. Pierre-Marie Dupuy. (6)

    Cession of territory cannot happen or occur without (the) agreement of the population / inhabitants, adds Dupuy. (7)

    In order to circumvent this requirement Buzi wants an inhabited island, i.e., an island without population / inhabitants.
    There is no problem with that.

    Dupuy draws attention to the fact that in the 19th century relationship of the sovereign to the territory was a relationship to assets (“était une relation patrimoniale”). That’s why in those days cession of territory occurred though sale. In 1803 France sold Louisiana to the USA and 1867 Russia sold Alaska to the USA.

    From the eighth decade of the 19th century onward, cession of territory happened or occurred not through sale, but through peace treaties. By the 1871 Treaty of Frankfurt, Alsace–Lorraine was ceded by France to Germany and by the 1919 Treaty of Versailles, Alsace-Lorraine was ceded by Germany to France. (8)

    We are now 100 years after the Treaty of Versailles, so we can experiment.

    Buzi wants to buy unpopulated islands. Upon the purchasing of the insular territory, the relationship between Buzi’s organisation and the territory would again be “une relation patrimoniale”. Why not?

    It is true that Prof. Ian Brownlie has drawn attention to the fact that the identification of the five modes of acquisition of territory (occupation, accretion, cession, conquest and prescription) should – in contentious cases – not be used as a substitute for analysis and that it is more important to concentrate on the precise reason why in any given case, a state can be said to have acquired sovereignty over territory. (9)

    But that argument of Brownlie concerns the “ex post” analysis – in contentious cases – which aims at determining whether a state can be said to have acquired sovereignty over territory.

    Here, i.e., in the case of the Refugee Nation, we are concerned with, or rather are performing, an “ex ante” analysis of the acquisition of statehood and thus sovereignty.

    The first objection may hereby have been rebutted.

    AS TO THE SECOND OBJECTION

    The second objection to the creation of a Refugee Nation is that if a country did sell sovereignty, and any refugee could become a citizen, the Refugee Convention would allow any and every state to force a refugee to go there. Hence the Nation would become a dumping ground – and even a prison.

    In early December 2015, Greece also faces the dumping-ground risk. To maintain Schengen, the EU wants to have control on its external borders. Greece, which is indeed not connected to the rest of the Schengen zone, is such a border. As Athens is unable to control this border and is, for reasons of national sovereignty upon which would be infringed by outside support, reluctant to accept outside support to do it more effectively, the EU has warned Greece, says the Financial Times (10), that it faces suspension – even exclusion, says Le Monde (11) – from the zone unless it accepts that support, first all for the registration of refugees. The EU also complains about Athens not having fulfilled its promise to arrange three flights to relocate migrants to other member states. This would be the first time a country would be suspended from Schengen.

    These failings by Greece would make a mockery of all EU efforts to solve the refugee crisis. On the other hand, they confirm the risk of Greece becoming a dumping group for refugees, Le Monde quoting EU Commission president Jean-Claude Juncker as saying that Schengen is comatose.

    Fresh from the press:
    Exclusive: leaked document reveals EU plans to suspend Schengen for two years
    Comments by Steve Peers
    Wednesday, 2 December 2015
    http://eulawanalysis.blogspot.be/2015/12/exclusive-leaked-document-reveals-eu.html

    The argument of Hathaway’s second objection seems to be that the Refugee Convention is about providing protection to people. People can normally get protection in the state, or in one of the states, of which they have the nationality. And if they cannot benefit from that protection in that state or in one of those states, they can flee and benefit from the protection of the state where they manage to get recognised as a refugee.

    This objection seems to be more serious than the first one.

    Okay, let’s try to handle it this way.

    What is it that we want? What is that our governmental Masters want?

    I drew already attention to the fact that the 29 November 2015 Brussels deal offers visa-free travel for Turkish citizens throughout the Schengen zone by October 2016 – that’s still ten months away from now – , but that if the deal fails, said zone will not survive. And I went on to ask: if the zone does not survive, what’s the use of having the right of free travel throughout the zone?

    There is another contradiction in the position of the Masters of Fortress Europe. These Masters want to crack down on the “lucrative” (what’s the relevance of the fact that it is lucrative?) transport of people (which these Masters qualify as “people smuggling”) over the Greek-Turkish sea border, but they have erected a fence, a Berlin wall, on the Turkish-Greek land border, thereby making it necessary for people who want to cross from Turkey to Greece to use the sea border and its heroic transportation firms.

    This second objection is the prison-camp objection.

    RT, originally Russia Today, a Russian government-funded television network, says that Refugee Nation moots several locations for a new state: on a sparsely inhabited island of Indonesia or Philippines, a newly built island or a European enclave. (12)

    Yes, a European enclave, says RT.

    Now, if Schengen collapses, travel within the Schengen zone will no longer be passport-free.

    If Refugee Nation is established in a European enclave, the prison-camp objection disappears since nobody, not even a Caucasian, will any longer be able to travel in the Schengen zone without a passport. Everybody will be in a prison camp.

    “Bis (ter?) repetita placet”:
    Fresh from the press:
    Exclusive: leaked document reveals EU plans to suspend Schengen for two years
    Comments by Steve Peers
    Wednesday, 2 December 2015
    http://eulawanalysis.blogspot.be/2015/12/exclusive-leaked-document-reveals-eu.html

    I do immediately concede that more thinking is required about those two objections, about those two quite fundamental problems that make the Refugee Nation model unworkable in its present form, especially about the second objection. I hope that this post can be a very small contribution to resolving these problems.

    As Dr Hathaway put it to The Independent, “What I love about [Jason Buzi and his Refugee Nation proposal] is his sense of moral outrage about a problem that could be fixed but no one is fixing.” (13)

    Ivo Cerckel
    ivocerckel@siquijor.ws

    NOTES

    (1)
    EU’s ‘Dirty Deal’ With Turkey on Migrants Draws Flak From German Press
    11:51 30.11.2015
    http://sputniknews.com/world/20151130/1030972345/ankara-refugees-agreement-media.html

    (2)
    France’s state of emergency could lead to abuses, say human rights groups
    Rights groups say vigilance is needed to stop a dragnet approach targeting innocent people and wrongly focusing on general Muslim community
    Angelique Chrisafis in Paris
    Thursday 26 November 2015 17.27 GMT
    Last modified on Thursday 26 November 2015 18.08 GMT
    http://www.theguardian.com/world/2015/nov/26/frances-state-of-emergency-could-lead-to-abuses-human-rights-groups-warn

    (3)
    What should we do with all the refugees? Give them their own country
    A totally new nation could give the Calais thousands – and escapees from warzones across the world – a place they can call home
    By Jason Buzi
    12:28PM BST 31 Jul 2015
    http://www.telegraph.co.uk/news/worldnews/europe/france/11775692/What-should-we-do-with-all-the-refugees-Give-them-their-own-country.html

    (4)
    This Silicon Valley Entrepreneur Wants To Create A New Country Only For Refugees
    Refugee Nation is a logical, idealistic plan that would likely never, ever work.
    September 21, 2015 | 6:45 AM
    http://www.fastcoexist.com/3051121/this-silicon-valley-entrepreneur-wants-to-create-a-new-country-only-for-refugees

    (5)
    Martin Dixon, “Textbook on International Law”, Mayfield, East Sussex, Blackstone Press Limited, 1993, 2nd ed., section 63.3.3, p. 128

    (6)
    Pierre-Marie Dupuy, “Droit international public”, Paris, Dalloz – Précis Dalloz. 1992, section 42, p. 27
    Cession is a process (“une opération”) through which one state renounces to the benefit of or in favour of another to the rights and titles which it enjoyed until then over a given territory
    (“la cession est une opération par laquelle un Etat renonce en faveur d’un autre, aux droits et titres qu’il possédait jusque-là sur un territoire donné”)

    (7)
    Dupuy, op. cit, section 42, p. 27-28

    (8)
    Dupuy, op. cit., section 42, p. 27

    (9)
    Many of the standard textbooks, and particularly those in English, classify the modes of acquisition in a stereotyped way which reflects the preoccupation of writers in the period before the First World War.
    According to this analysis (if the term is deserved) there are five modes of acquisition –
    occupation, accretion, cession, conquest, and prescription.
    Apart from issues arising from the division and choice of the modes, the whole concept of modes of acquisition is unsound in principle and makes the task of understanding the true position much more difficult. Labels are never a substitute for analysis [Ivo: IN CONTENTIOUS CASES]. The inadequacies of the orthodox approach will perhaps be more apparent when the relevant questions have been examined in the sections which follow, but a few things may be usefully said here. A tribunal will concern itself with proof of the exercise of sovereignty at the critical date or dates, and in doing so will not apply the orthodox analysis to describe its process of decision. The issue of territorial sovereignty, or title, is often complex, and involves the application of various principles of the law to the material facts. The result of this process cannot always be ascribed to any single dominant rule or ‘mode of acquisition’.
    The orthodox analysis does not prepare the student for the interaction of principles of acquiescence and recognition with the other rules.
    Furthermore, a category like ‘cession’ or ‘prescription’ may bring quite distinct situations into unhappy fellowship.
    Lastly, the importance of showing a better right to possess in contentious cases, i.e., of relative title, is obscured if too much credit is given to the five ‘models’.
    […]
    (Ian Brownlie, “Principles of Public International Law”, Oxford University Press, 2008, 7th ed., p. 127)

    Sovereignty is the most excessive form of jurisdiction in international law.
    In general terms, it denotes full and unchallengeable power over a piece of territory and all the persons from time to time therein. (Dixon, op. cit., section 62, p. 123)

    Sovereignty is the prerogative or privilege (“l’apanage” in French) of the state. Its possession entails for its possessor a direct consequence, i.e., that fact of bestowing upon the possessor a corporate identity within the international legal order. This is what is meant when one says that the State possesses an international legal personality.
    La souveraineté constitue l’apanage (“prerogative”, “privilege” in English) de l’Etat.
    Sa possession entraine automatiquement pour son titulaire une conséquence directe. Celle de lui conférer une identité corporative à l’intérieur de l’ordre juridique international. C’est ce qu’on enseigne en disant que l’Etat possède la personnalité juridique internationale.
    (Dupuy, op. cit., section 58)

    (10)
    Greece warned EU will reimpose border controls
    Anger in Europe over Athens’ response to migrant crisis
    yesterday
    by: Alex Barker and Duncan Robinson in Brussels and Kerin Hope in Athens
    https://next.ft.com/content/463dc7a0-982b-11e5-9228-87e603d47bdc

    (11)
    Migrants : l’Europe menace d’exclure la Grèce de l’espace Schengen
    (Bruxelles, bureau européen)
    LE MONDE | 02.12.2015 à 11h45 • Mis à jour le 02.12.2015 à 17h05 | Par Adéa Guillot (Athènes, correspondance), Jean-Pierre Stroobants (Bruxelles, bureau européen) et Cécile Ducourtieux
    http://www.lemonde.fr/europe/article/2015/12/02/la-grece-risque-la-sortie-de-l-espace-schengen_4822232_3214.html

    (12)
    ‘Give them a country’: US tycoon’s novel approach to world refugee crisis
    Published time: 27 Jul, 2015 17:38
    Edited time: 26 Aug, 2015 11:18
    https://www.rt.com/news/310889-refugee-crisis-country-tycoon/

    (13)
    Refugee Nation: A US property mogul’s simple solution to the world’s migration crisis – create a new country for refugees to live in
    Jason Buzi hopes to get some the world’s richest people involved in his plan
    Adam Taylor
    Monday 27 July 2015
    http://www.independent.co.uk/news/world/americas/refugee-nation-a-us-property-moguls-simple-solution-to-the-worlds-migration-crisis-create-a-new-10417235.html

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