Photo via Irish Defence Forces
THE CRISES of refugees in or in transit to Europe, and undocumented immigrants in the United States, are huge international news stories, but most news coverage has left out crucial details that could help sway public opinion and move those in power to alleviate suffering.
What is missing in the current discussion about these "crises" is acknowledgement of the fact that admitting and settling refugees isn't a matter of ad hoc charity or benevolence -- it is compliance with international law.
For example, with respect to refugees fleeing Syria, Iraq, Eritrea and Afghanistan, the focus has been upon the uneven treatment refugees are receiving from host countries such as Hungary, Germany, Greece and the United Kingdom. Particularly via many news media, the emphasis has been upon Germany's relative generosity early-on, and the UK's seeming resistance to doing their "fair share" to address the suffering. Such superficial coverage threatens to turn discourse about international law into a debate about which countries are most charitable towards people in unfortunate situations, and which countries are exercising their right to secure borders against the impending flow.
The United States joined the international refugee regime by ratifying the 1967 Protocol relating to the Status of Refugees (Protocol) in 1968, and in the Refugee Act of 1980, Congress pointedly brought U.S. refugee law into line with our international legal obligations. An examination of Article 1 of the 1951 Convention, relating to the Status of Refugees (Convention) and the U.S. asylum provisions, §§ 101(a)(42)(A) and 208 of the Immigration and Nationality Act (INA) shows the degree to which U.S. law has been brought into line with international standards.
The crucial definition is as follows: A refugee is someone who, "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."
This definition, despite its relative narrowness (most notably, it doesn't recognize as refugees those people who have fled their country for reasons of economic hardship, or for discrimination on the basis of gender or sexual orientation), nonetheless pertains to millions of people worldwide. In the case of those fleeing into Europe at this moment, most would be admissible under this definition, and all of them would have the right to at least cross into host countries and make claims.
The refugee determination process is very intensive, and nations exert strenuous efforts in attempts to ensure that refugee claimants who seek entry aren't criminals, terrorists, or people in flight for reasons other than persecution according to the Convention. All this gives rise to a crucial point: Countries that are anxious to investigate those entering onto national territory are far better served to open up their borders, so that all crossings are done legitimately, legally and without the intervention of smugglers.
This is one of the ways in which the current refugee crisis resembles the issues surrounding undocumented people in the United States, and it points to a crucial finding in all of my research, conducted over the past two decades. A policy of open borders, in which people can exercise their legal rights to make refugee claims, in the case of persecuted people, would allow for adjudication of claims according to international and domestic legal norms.
My recent work, focused upon undocumented people, goes further. It is a fact that many undocumented people in the U.S. would be eligible for refugee status, because many of them have been persecuted according to one of the Convention's categories.
Yet, even beyond that, we would be far better off to allow people from Canada, Mexico, and indeed all of the Americas, to legally enter the U.S., legally work, and benefit, for example, from the rights such as those long-accorded in Europe to citizens of member countries in the European Union. By ensuring legal flows of people across borders, we eliminate smugglers, coyotes, and other profiteers, while making it more likely that everyone on our territory feels part of the nation where they reside, rather than fearful of its authority.
The United States is signatory to the North-American Free Trade Agreement (NAFTA), just as, for example, France is signatory to the European Union. The difference is that NAFTA permits the smooth flow of goods, but doesn't allow for an equally smooth flow of labor, which is a natural component of free trade agreements. This means that not only are Mexicans "illegal" if they enter without proper documents to the U.S., they are also trapped here, because their illegality is always with them, as long as they are on U.S. territory. So if they'd like to go home, they run the same risks as when they entered the country, suggesting that the walls we erect are keeping people in, as well as out. In Europe, as in the U.S., people are going to enter one way or another; thus, in Europe we are seeing people take every greater risks to cross borders, resulting in growing numbers of in-transit deaths, much as we see in the perilous no-mans' land along our own borders.
In short, the crisis in Europe is a legal one, for which there is a legal solution: People in flight must be admitted, adjudicated as Convention refugees, and, if found credible, settled. There are certainly legitimate questions as to where they should be settled, and the EU should allocate the resources to ensure that migrants are distributed equitably among host countries.
In addition, the United States, an important contributor to international agencies involved in settlement and resettlement, needs to act to maintain and increase those agencies' contributions, and should help settle large numbers of claimants.
My research leaves me no doubt that the solution to the crisis of undocumented people in the U.S., and the refugee crisis in Europe, lies in softening and not hardening borders; ensuring compliance to international norms; eliminating dangerous smugglers and middlemen; and, allowing people to exert their right to cross borders freely, a privilege for all persons that is ensconced in the 1948 Declaration of Human Rights. •
Robert F. Barsky is a Vanderbilt University professor of French, English and Jewish Studies. Born and reared in Canada, he became a U.S. citizen in 2014. Among other distinctions, in 2013 he received the Dutch Royal Academy Visiting Professor Award, Migration and Diversity Research Group, Free University of Amsterdam Law School. He is author of Undocumented Immigrants in an Era of Arbitrary Law - The Flight and the Plight of People Deemed 'Illegal' (Routledge, 2015). More detail on his website. He submitted this column at the invitation of Venture Nashville.