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Jerusalem Center for Public Affairs
Strategic Alliances for a Secure, Connected, and Prosperous Region

Refugees in International Law and Morality

Filed under: International Law

To a very large extent my task here is far more simple than the General Kuperwasser or Professor Kasher because the legal principles here are very, very clear: Either you have complete sovereignty to do what you want to allow or not allow whoever you want or don’t want to enter your country. This is the basic international principle of sovereignty. You have the full prerogative to close your country, to close your borders; there is no obligation, no legal obligation on any state to open its borders unless of course it takes upon itself the obligation by signing an international treaty or by signing a bilateral agreement. But international law has always from time immemorial for hundreds and hundreds of years—I would even say thousands of years—recognize the fact that a state has absolute sovereignty. However, since the Second World War, and especially since the Vietnam War and and the the the more modern outbreaks of international conflicts, whether between states or between a state and a non-state entity, a terror organization, or whatever, the international community has developed a whole series of moral norms.

And here I come to the Professor Kasher, who referred to these moral norms. And these moral norms are what we what we call human rights, and there have been hundreds and hundreds of conferences and various declarations and instruments and resolutions developing the concept of human rights. In other words, on the one hand, a state has the absolute right to do what he wants; but on the other hand, there are today moral norms that oblige a state to act in a moral manner, even if it doesn’t have to. And this is the the important point that we’re discussing here, because especially in in in the last half-century the movement of people—migrants, refugees, whether voluntary or forced, whether as a result of armed conflict or oppression or voluntarily—has developed and it’s come to a head and we’re seeing it today and this is why we’re sitting here, and has developed a human right of free freedom of movement and protection.

The Canadians took this one step further and they developed this what they call “R2P:” the right to protection. In other words, they, the Canadians, have tried over the years to introduce an obligatory principle, an obligatory duty to protect the weaker people and the right of the weaker people to be protected despite your sovereignty. It hasn’t yet taken on because nothing like this takes on quickly in international law and international practice. But in principle what I’m saying is that there’s a dichotomy between the inherent sovereign right to control territory to control entry into territory and a moral humanitarian imperative to protect human rights and to protect those people but utilize their right to move freely across the globe from one country to another.

What I would add to what Professor Kasher said when he said that zero is not acceptable: in international law zero is acceptable; zero is the norm. It’s not something that is ideal. It’s not something that that most countries would want, but some countries consider it necessary to protect whether it’s to protect their security or to protect their religious framework or any other essential component of their national existence. They have the right to do this.  Now as I said, over the years, there have been many, many international instruments and international practice that have been developed that are guidelines. In other words, they’re not obligatory, as I said, unless a state takes upon itself the obligation. But their guidelines regarding the rights of refugees, the rights of migrants, and the duties of those hosting states that choose to accept them, or to help them, to assist them. There’s no one consolidated comprehensive legal instrument or obligatory framework that manages immigration. Over the years there have been many, and I’ve listed in my chapter, in this pamphlet, a series of the most important international instruments that apply.

And a couple of examples: for instance, the Universal Declaration on Human Rights—which again is not an obligatory instrument, it’s a universal declaration—states support it or don’t support it but it doesn’t bind anybody. But it creates a series of norms that states feel the necessity to abide by otherwise. From the point of view of public relations, it’s not good for them unless you’re a superpower and you can do what you want, which we can see is happening nowadays. So the the Universal Declaration on Human Rights in 1948, for instance Article 13, refers to the rights to leave and return. Basic right! Every country, every citizen of every country, has a basic right to leave or to return. Article 14: A Basic Right to Seek And Receive Asylum. The 1967 Convention on the Status of Refugees, Article 26: The Right to Choose a Place of Residence and to Move Freely, Article 31: The Right of Illegal Refugees to have a Regularized Status Within a Reasonable Period. In other words, a state which allows refugees in, even if there have they’ve got no legal status, has a moral obligation to to enable them to regularize their status within a reasonable amount of time. An Article 33, which is a very central article in the Convention and the Refugees Convention: You’re prohibited from returning a refugee to a country where his or her life is in danger. And article 34: there’s a moral obligation to facilitate and expedite naturalization proceedings in the event that the state agrees to accept these people. The International Organization of Migration, the IOM, which was created in 1951–172 Member States—the whole aim is to promote orderly and humane migration, cooperation, practical solutions, and humanitarian assistance. But it’s all a voluntary framework; in other words, if you want to, you will. If you don’t want to, you don’t have to.

And perhaps the most important and the most recent international document is 2018: A UN Global Compact for Safe, Orderly, and Regular migration. It was adopted in Marrakech, Morocco in 2018. It’s non-binding and it’s very detailed, and it suggests ways to manage immigration. But it reaffirms the sovereign rights and prerogatives to govern migration policy; in other words, again, it says nobody is obliged to do anything here, but here are a list of things that you should do if you want to treat migrants or refugees in a—give them the dignity the human dignity, all the privileges that international practice gives them nowadays.

Now it’s interesting: the UN, when the Secretary General of the UN introduced this compact, he stated in his opening speech sovereignty is absolute here, but he recommended that states adopt humane and sensible action in dealing with refugees. The French stressed that there’s absolutely no right of refugees or migrants to be accepted, and they don’t agree to a principle of a right, but they can acknowledge the fact that that there is a need to manage and and regularize migration. Jordan, Iceland, Lithuania, Malta, Netherlands, Denmark also confirmed the fact that they all have sovereign rights to decide whether to allow immigration or not, and there are no legal obligations, but they will act according to their own national interests. The U.S, Hungary, the Czech Republic, Poland, and Israel voted against this global compact despite the fact that there was nothing—it was it was annexed to a General Assembly resolution, so in itself it’s not a binding document. No General Assembly resolution is a binding document, it’s a recommendation. But for whatever reason, these countries decided that they couldn’t support it, and so they voted against it.

So in conclusion all I’m saying is this: that the international practice with all these documents, with all these instruments, there are a wide range of honorable intentions, noble platitudes, moral and patronizing intentions and preaching, but none of them create any law or any legal obligation. All these instruments are a result of political compromise. And as we all know political compromise means, that the lowest level of commitment is the one that will inevitably adopt it. No state will willingly or hardly any state will willingly enter into a commitment without being able to get out of it somehow. So what my chapter in this booklet tries to explain is—I try to extrapolate from all the various instruments, what are the common ethical elements, the common ethical code of conduct, that should guide states irrespective of political or security situations in order to ensure human dignity.