Natural law and international refugee law
Writing in 1899, Sir Sherston Baker argued that laws that violate natural and divine law 'have no binding force'. Baker's exposition was to emphasise the importance of morality and ethics to the formulation and application of the law.
Baker was writing at a time when the natural law tradition, a pillar of western civilisation, was being challenged by a new legal tradition - positivism. Though discussion on jus positivum was found in some medieval writings including that of Peter Abelard in his famed Dialogue, it was Jeremy Bentham and John Austin who pushed for this new approach.
Bentham and Austin emphasised that laws must emanate from an independent, sovereign political entity, because as Austin argued the law should be what 'men' posit it to be, which also meant that the law was changeable. This was in direct opposition to natural law advocates who identified key rights (ius) that transcended time as they are found in nature.
The Great Wars of the twentieth century questioned the positivist tradition that Bentham, Austin, Morgenthau, and Kelsen advocated for, as international society recognised that allowing states to operate with impunity undermined peace and security based on an international legal order (ius gentium) that served as a higher and compelling law (ius cogens).
International refugee law (IRL) evolved out of the recognition as to the presence of some basic rights (natural law), interconnectedness of humanity and the need to help others.
In 1951, states came together to adopt the Convention Relating to the Status of Refugees, which laid down an international protection regime. Under the Refugee Convention and the 1967 Protocol a person is a refugee if, inter alia, they flee persecution and they are deemed to be a member of one or more of the five enumerated groups (race, religion, nationality, membership of a particular social group or political opinion, Art. 1A(2) 1951 Refugee Convention).
The end of the Cold War and the proliferation of new wars (645kb pdf) placed the international protection regime under enormous pressure, as civilians were increasingly targeted by warring factions. Many states reacted to mass population movements by adopting legislation limiting their responsibility for those seeking refuge from persecution and human insecurity. This was in stark contrast to what took place during the Cold War. During that time states proved more willing to accept people fleeing persecution as seen with the 1956 Hungarian Uprising, which saw over 180,000 people cross over to Austria. Within 10 weeks of the uprising around 100,000 people were resettled in the UK, USA, Canada, Australia, Switzerland, and other countries.
Under the current protection regime, states limit and reinterpret their responsibilities and duties in protecting those fleeing persecution. They adopt domestic legislation providing for new ways to assess whether one is a bona fide refugee (and thus reduce numbers). They sign bilateral extraterritorial migration controls (non-entrée policies) aimed at making it harder for those seeking refuge to assert their legal rights as the physical border no longer begins at the water’s edge. They also welcomed procedures that permit the repatriation to 'safe' third countries, even though those countries have questionable human rights records.
In defending their actions, western policymakers claim that the measures are legal for several reasons. First, they were adopted though a democratic process. Second, the laws do not alter the protection regime, but rather implement the law. They emphasise that only those fleeing persecutions and can prove it are entitled to protection. This argument rests on two pillars: it is the responsibility of each state to look after their inhabitants if they face human insecurity (which is known as 'In Place' objection). Secondly, many host countries assert that to extend protection to non-persecuted individuals places a huge strain on them (this is understood as the 'Overwhelm' objection).
In challenging the Refugee Convention protection regime, Western policymakers also argue that voters want to stop irregular migration and permit only bona fide refugees' entry. The bona fide refugee is the individual that lodged their claims at the country of origins and did not use illegal means to enter the host country. Those that enter the host country illegally are deemed illegitimate claimants or queue-jumpers, even though Article 31 of the Refugee Convention prohibits the Contracting Parties from imposing penalties on those that enter and even stay at a host country illegally (see for example the travaux preparatoires of the Convention).
Senior policymakers seem to have forgotten the lessons of the Great Wars, as we increasingly take a transactional approach to inter-state relations, which seem to intensify cultural sovereignty and encourage populism and a rejection of established political ideologies and systems. If we are to restore faith in the liberal, democratic political system, we must return to a more natural law interpretation, which emphasises the existence of inalienable rights and that we all have a responsibility to protect and help those facing grave harm. It would serve us well to recall Hegel's famed exposition 'a human being counts as such because he is a human being, not because he is a Jew, Catholic, Protestant, German, Italian, etc.'
Natural law rejects socio-political-economic-cultural inequalities as it upholds the existence of fundamental ‘rights’ (ius) that each human has by virtue of being human and that these rights exist in nature, placing them above the law of humans. In this vein it is worth remembering Emmanuel Kant idealism best expressed in this well-known quote (115kb pdf):
Humanity is by its very nature capable of constant progress and improvement without forfeiting its strength … no one can or ought to decide what the highest degree may be at which mankind may have to stop progressing, and hence how wide a gap may still of necessity remain between the idea and its execution. For this will depend on freedom, which can transcend any limit we care to impose.
Isaac Kfir, Deputy director of defence, strategy and national security program; Head of the counter terrorism policy centre, Australian Strategic Policy Institute, writing in a personal capacity