As European countries try to determine how to absorb millions of Syrian, Iraqi, North African, and Afghan refugees and migrants across the continent, some are actively discouraging them from trying to enter – despite a legal obligation to help.
If a country blocks refugees' access to safety – particularly when turning back means going home to persecution – "then this may give rise to a breach of international refugee law," said James C. Hathway, director of the Program in Refugee and Asylum Law at the University of Michigan law school.
"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."
He is referring to Hungary's decision to build a fence along its border with Serbia to keep refugees traveling northwest through Serbia from reaching other parts of Europe.
Denmark on Monday took a different approach to discouraging refugees, placing ads in four Lebanese newspapers describing new laws that make the small Nordic country inhospitable to them. "There is more tightening to come and that is because the flow [of asylum seekers] to Denmark is too large," said immigration minister Inger Stojberg on Danish television recently.
According to the ads, Denmark’s Venstre (Liberal) party, which recently won power on an anti-immigration platform, has cut benefits to new refugees by 50 percent and will not grant refugees permanent residence for five years. Denmark, with a population of 5.6 million, saw asylum applications double to nearly 15,000 last year from 2013, reported The Wall Street Journal.
The warnings and fence may work to discourage refugees and migrants from coming, but reluctant countries like Denmark and Hungary are still legally obligated not to put the refugees in danger, notes Hathaway.
"If Hungary turns refugees back into a transit state knowing that the transit state will in turn force them back towards Syria, then Hungary is in breach of international law," he writes. "But if Denmark turns refugees back to Sweden, where there is no risk of being sent back to a place of being persecuted, then there is no breach of international refugee law."
Denmark, Hungary, and another 140 countries have signed the 1951 Convention Relating to the Status of Refugees and a 1967 amendment that broadened its scope beyond World War II-ravaged Europe. The international law outlines the rights of refugees, legally defined as people facing persecution or other mortal danger at home. These include a right not to be sent back to harm, the right not to be punished for illegally entering countries that have signed the treaty, the right to work, and the right to education.
EU countries are scrambling to form a plan to fairly distribute asylum seekers across Europe. Germany says it could take half a million refugees a year for several years, France has agreed to take 24,000 refugees over the next two years, and Britain said it would accept 20,000 over the next five years.
"Since, by definition, refugees are not protected by their own governments, the international community steps in to ensure they are safe and protected," said UNHCR, the UN refugee agency.