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On the run through time

Non-refoulement – the principle that no one should be sent back to countries where they risk persecution – is often mentioned when discussing the refugee crisis. Behind the foreign word is a strong and effective concept with a long history. 




(THIS ARTICLE IS MACHINE TRANSLATED by Google from Norwegian)

The UN headquarters in Geneva, the Palais des Nations, is so large and labyrinthine that when I worked there for a month, it took me a solid week to learn my way from the meeting room to the canteen. It felt imperative not to walk away in the Palais des Nations, and it was not just because I had such a short lunch break. No, it was because the place is ghostly even in broad daylight. You get the feeling that if you take the wrong turn somewhere, you can end up on a time travel to 1936. Despite this disturbing feeling, I often ended up almost alone in a monumental gallery with an unbeatable view of Mont Blanc. The hall is called "Salle des Pas Perdus" – "The lost footsteps hall". I did not know that this is a French collective term for large waiting halls – I thought it referred to how the League of Nations, whose headquarters the Palais des Nations was built to be, failed to do the task it was founded to do, namely prevent World War II.

One floor below the Salle des Pas Perdus is a smaller gallery where Staffan de Mistura and Jan Egeland often hold press conferences these days after another unproductive meeting between the parties in the war in Syria. It is unpleasantly easy to compare the refugee crisis caused by the war in Syria with the post-World War crisis, which was why the League of Nations was formed and the Palais des Nations was built. Ernest Hemingway was one of the writers who ended up covering the refugee crisis that followed that war: “In an endless, unsteady brief, East Thrace's Christian population fills the roads to Macedonia. The march column that crosses the Maritza River at Adrianople is over thirty kilometers long. Thirty kilometers of carts drawn by cows, oxen and muddy water buffaloes; worn-out, shaky men, women and children carrying blankets over their heads as they walk blindly into the rain with all their earthly goods beside them. "(From the article" A Silent, Ghastly Procession ", the Toronto Star newspaper October 20, 1922).

Non-refoulement. Since ancient times, states have had agreements between themselves that they do not drive refugees back to what they are fleeing from. Call it a kind of human instinct. "Refouler" is French and means "backwash"; the legal term for non-recovery is "non-refoulement". The term is usually used in a legal context, and sometimes in international meetings where there is talk of refugees – and it was heard more and more frequently during the refugee crisis that hit Europe last summer, when scenes such as Hemingway described were seen across the continent.

But non-recovery is not just a rule of law certain rich countries follow due to their generosity. Outside of Europe, where most of the world's refugees are located, there are, among other things, one million Somali refugees distributed in neighboring countries, and one and a half million Afghan refugees in Pakistan. It is not just political reasons why they are not relentlessly driven back across the border from which they came. Part of the reason is obedience to just the international norm of non-refoulement. And the reason this norm is followed so widely is that many believe it has risen to be included in the legal concept jus cogens. In plain language it could be tempting to describe jus cogens such as (in addition to a number of injunctions) a "ban on things that just don't work".

Cogens juice is something close to the basic rules of living that states cannot break without at the same time opting out of the international community at a certain level. We can measure how deep jus cogens- the norms stick by considering the other prohibitions the term is widely accepted to cover: prohibition of torture, genocide and slavery. Surprisingly, there is no formal process that determines which norms are jus cogens or not.

Prediction point. When, after World War I, delegates wrote the first Refugee Convention in 1933, it was the first time non-refoulement was included in an internationally binding treaty. World War II was the proof that a new and better treaty was needed, and in 1951, 26 of the post-World War II states met again in Geneva to create a new, better and more up-to-date refugee convention.

The group split between countries that had already taken in lots of refugees, and countries that were distant enough from the crisis that they were not overwhelmed by the masses and could selectively select some refugees to take in. The former group was confusingly called "Europeanists", while the selective group was called "Universalists," according to historian Gilad Ben-Nun, who has studied the process of writing the Refugee Convention. Collaboration between idealistically motivated delegates (many of whom had felt the effects of World War II on the body and had themselves become refugees during the war) led states to agree on a broad and progressive treaty.

Treaties between countries work by the states that write them first agreeing on a text. Part of the agreement is that it enters into force when a certain number of countries have accepted the text as law by ratifying it. The 1951 Refugee Convention entered into force after only six states had ratified it; Norway was second after Denmark.

Are you crunched? The agreement on the basic concept of non-refoulement was the reason why it was incorporated into both the Refugee Convention of 1933 and the still-existing 1951 Refugee Convention, which remains the foundation of European refugee policy. Some argue that the convention may be crumbling after the Syrian war put it under acute pressure. The argument as to whether a treaty created in response to precisely the kind of crisis Europe is now in, still valid when it in many ways proves not to work in today's situation, will have to be debated in the aftermath of the Syria crisis.

What is certain is that, even if states were to take the extreme and almost unthinkable step of ceasing to comply with the Refugee Convention – or other agreements based on it, such as the Dublin Agreement – would still jus cogens- the norms that the treaty introduced exist. The superstructure can go in as many crunches as Palmyra, but the foundation stones are made of a stronger fabric:

The norms will exist because they extend back to pre-modern times and because they are founded on a deep understanding that certain rights are so fundamental that no one can massively and systematically break them without at the same time opting out of the international community. If we do not yet see direct results of, for example, Hungary's closed borders or Sweden's principled response to the crisis (to name two extremes on the scale of reaction), there is no guarantee that the consequences will be absent. What the results will be and whether it will take five, ten or thirty years for them to appear remains to be seen.


Grønnetvet is stringer at Bloomberg News. juliagronnevet@gmail.com

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