Swetha Somu, currently a second year student of the Gujarat National Law University, Gandhinagar, pursuing the BBA. L.LB (Hons.) Course.
DATE OF PUBLICATION- 23/07/2021
On June 3rd, the Danish parliament accepted the amendments to the Danish Aliens Act which intends to transfer refugees seeking asylum to a non-EU host country until their application is reviewed. However, the accepted applicants will not be brought back to Denmark but will be offered protection in the host country itself. This implies that asylum-seekers won’t be granted protection within the territory of Denmark, hence violating the guaranteed human rights under various regional and international laws on refugees seeking asylum and protection of life.
Brief background
Denmark’s asylum seekers figures peaked in 2015 with 21,316 applicants but in the subsequent years, this figure decreased. From the 4,16,600 asylum seekers across EU member states in the year 2020, only 1,515 people sought refuge in Denmark, out of which merely 601 individuals were accepted. In contrast, Sweden and Germany are generous in the acceptance of refugees. For example, in Sweden, refugees are given money for accommodation, medicine and leisure activities. They are given work permits after receiving refugee status. This not only benefits the refugees but provides them support and sustenance to live a satisfactory and peaceful life. The basic right to have a peaceful and secure life is ingrained under Article 3 of the Universal Declaration of Human Rights (UDHR). Deprivation of this right is unfair, unjust and inhuman. Thus, Denmark should acknowledge the impacts of itsnew amendment on the refugees and strive to achieve collective welfare of the global citizens.
How does it affect the refugees?
The idea of “zero asylum seekers” was once again brought up by Danish’s Social Democratic Prime Minister Mette Frederiksen. The incumbent social democrats based this ideology of bringing up a new asylum system in which the Danes’ territory doesn’t play any role in hosting or protecting vulnerable refugees. The reason given for this is that it will stop the refugees from undertaking a difficult and dangerous journey through the Mediterranean Sea to reach Denmark. This vision is justified to as it stops the refugees from jeopardizing their lives to seek asylum in Denmark. Hence Denmark has drawn up a plan to “outsource” the asylum to third-world countries to host the refugees on behalf of Denmark.
In accordance to the plan, Denmark recently signed a Memorandum of Understanding with Rwanda to outsource Denmark’s asylum system and provide protection to refugees in Rwanda’s territory. Additionally, Denmark is in talks with Ethiopia, Egypt and other countries in hosting its refugees. What is observed from this “outsourced” asylum procedure is that most of them resort to illegal means like the migrant smuggling network to traverse across borders to eventually to end up in European countries. Migrant smuggling is a recognized crime under Interpol. “Hazardous routes, overcrowded boats, abandonment, and forced criminality are just some of the dangers faced by migrants once they set off.” Hence the illegal means of travel might be even riskier for the persecuted refugees than the sea route thereby countering the Social Democrats’ arguments.
Moreover, it’s worrisome that although the refugees are being sent to third world countries for seeking asylum in Denmark, they still have to reach Denmark for an asylum application. Therefore, the risky journey in search of protection has not stopped either way. Additionally, another cause of concern is that the refugees would now be creating an influx in neighboring countries of Germany, Sweden, France and Italy for which they have to come via the dangerous sea route again thus, defeating Denmark’s justification for amendment. The influx in immigrants will reduce the probability of acquiring the refugee status there hence putting them into more turmoil in search for shelter and security.
An important point to note is when Henrik Nordentoft, the UNHRC representative of the Nordic and Baltic countries, expressed his concern on the implementation of the new amendments creating a “domino effect” whereby the other European countries could also search for different options to mitigate their human rights obligation. They could get inspired by Denmark’s move and tighten their anti-refugee law stating self-interest reasons. This will only add up to the difficulties which the refugees face while seeking refuge, as many doors to seek protection and livelihood are shut. Thus, the international spirit of humanitarianism is lost as the vulnerable are left to suffer.
In the end, it all comes down to the refugees being let down by a potential safe haven like Denmark thus making it hard to enjoy their basic right to life and right to security as an ordinary human.
Denmark’s violation of international and regional law
To start, Article 14 of the (UDHR) states that an individual has the basic right to seek asylum from persecution in any country. Further, Vienna Declaration and Programme of Action 1993reiterates the right to seek asylum. The Asylum Procedures Directive, which Denmark is not a part of, provides the right for the asylum applicants to stay in the destination territory of an EU member state till the decision on the application is taken.
Even though the UDHR and Vienna Declaration are legally non-binding, the 1951 Refugee Convention, to which Denmark is a signatory, is legally binding. Article 33(1) of this convention provides for the non-refoulment of vulnerable refugees. The amendments whereby Denmark is sending the refugees back from their territory to another third-world country thus waiving off their international obligation therefore go against this provision of the convention, causing concern to the United Nations and European Commission. As mentioned in the Preamble of the 1951 Refugee Convention, granting asylum is a financially burdensome procedure. However, the signatories should striveto give their maximum contribution for this humanitarian cause. It is very upsetting to seean economically well-off country like Denmark avoiding humanitarian responsibilities by strengthening anti-refugee laws.
In addition to these laws, Denmark is legally-bound by the Charter of Fundamental Rights of the European Union which guarantees the right to asylum as per the rules of the Refugee Convention 1951 and its subsequent protocol in 1967(Article 18).Another Convention to be looked into is the European Convention on Human Rights (ECHR)which, although doesn’t explicitly provide the right to asylum, provides for the absolute right to life (Article 2) and the right against torture, inhuman treatment or degrading punishment (Article 3).The court in Gebremedhin v. Francestated that these two articles can come into play to stop the refoulement of refugees and instead, they should be able to apply for asylum in that country.
Further, under Articles 3 and 4 of the Schengen Borders Code, the border force is obliged to respect refugees’ rights and request for international protection. Thus, Denmark is obliged to provide capable support and protection to refugees at the borders. They should not waive off their rights by transferring the refugees to some other third country in the name of providing protection through that third country, thereby shifting the burden and responsibility away from Denmark.
Conclusion
In sum, Denmark’s move to eliminate refugees on its soil will be the start of the degradation in international commitment to provide protection and asylum to vulnerable refugees. Denmark should be held liable under the 1951 Refugee Convention for the refoulement of refugees; Charter of Fundamental Rights of the European Union for the failure to grant asylum in its territory; the ECHR for the deprivation of the right to enjoy one’s life and the right for seeking security and lastly, for the breach of the Schengen Borders Code.
If Denmark is let loose with the repulsion of its refugees, the international commitment to collectively safeguard the rights and provide adequate protection to the asylum-seeking refugees will deteriorate. Many more countries will bring in newer justifications to protect self-interests and avoid international obligations which will only damage the collective welfare of humanity. Thus, powerful international actors like the EU and the UN must proactively step in and engage in talks with Denmark so that refugees’ human rights are protected and that the international commitment and cooperation remain unhindered. The future steps taken by these actors should send a strong message across the world that the refugees rights are respected and are not forgone at any cost.