The right of asylum

Patrick Weil, Professor at Yale Law School and Senior Research Fellow at the French National Centre for Scientific Research, discusses migration.

Patrick Weil

Research Professor

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Patrick Weil

Research Professor

07 Jul 2021

Key Points

The Geneva Convention recognises the right to apply for asylum but not the right to be admitted into another territory.
People migrate due to a lack of opportunities, lack of rights, global warming and war, among other reasons.
Dialogue is key to convincing people to accept migrants.

The right to exit, not to enter

Nationality is the right to claim a place in the world where you can have your home, where even if you have lived abroad for 30 years, you can come back in case of a big crisis. It’s a place where the State owes you protection and gives you rights based on your nationality. Among the rights that have been proclaimed in 1948 by the Universal Declaration of Human Rights was the right to exit your country – but the right to exit your country doesn’t mean the right to enter another one. It is in this loophole that we must consider the question of refugees and immigrants.

Is there a right to enter a country where you are a foreigner? Since the Second World War, many countries have developed, often through court rulings, rights that are proclaimed by the government. For example, if you marry a foreigner, often it is decreed by the State that you can bring your spouse to your country. So that is one category of foreigners that have the right to move abroad, to live with the spouse who has the nationality of the country of entry. When an immigrant has been legally admitted into a country, has a right of residence, often the court also guarantees, under certain conditions of housing and resources, the right for his or her family to immigrate and join the person. So, there is a right to a family life that is recognised, for example, under the European Commission of Human Rights.

The right to apply for asylum

Photo by pixelrain

The Geneva Convention recognises a right of asylum for refugees, but it doesn’t guarantee a right to be admitted into the territory: it guarantees that once you reach the territory of another State and if you apply for asylum, you have a right to due process. You have a right to an independent body to assess your right under your claims – but you don’t have a right to enter.

It’s why you see these boats in the Mediterranean Sea or along Australia or sometimes Canada not being welcome in the ports of the countries they want to reach; there is no obligation under international law to admit them. There is only an obligation to save human life if there is danger, but that’s the law of the sea. If that happens, then people are admitted, their situation is checked, etc. It is a very complex process.

Obviously, this regime is in crisis. It is in crisis because more and more people want to leave their country, and the first manner to resolve the crisis is perhaps to understand why they want to leave. Often, it’s because there are no rights, freedom of speech, freedom of thought. It’s a country where basic freedoms are not recognised for the individual. It’s a country where there is corruption. There is no opportunity for youth to develop their talent because of many factors that provoke and encourage migration.

The difficult reasons for migration

One of the main reasons for migration is not the will to leave; it’s a very difficult decision to leave one’s country. It’s the kind of feeling that there is no future in the country you are from, and there is a decision to leave your own family. It’s a very tough decision and people would love to be able to stay, but they cannot. They cannot because they see no future for themselves.

One of the actions that should be taken by the international community to resolve the question posed by migration is to say, we want people to live in the country they want. Yet, often, the first country where they would like to live is their country of origin, and they cannot live there because there is no liberty, because there are no opportunities. It is those freedoms that we have to fight for to fulfil the rights of citizens to live in their country of citizenship.

You still have people who want to leave or were forced to leave for political reasons, for the risk facing their life, and that was the old status of refugees, but now people are being forced to leave because of the impossibility to remain in their country due to global warming. You have some islands that will disappear because the sea is rising. You have countries that would become so hot that they would become unlivable. There is a new treaty to be negotiated by the international community, which has to organise the right to find a home for these forced migrants who are just leaving the country of their origin because they have become unlivable. So, that is a reason to reorganise the regime of migration and asylum.

Addressing the causes of migration

Even if migration has risen due to wars where people leave because they don’t want to be killed, still, the majority of human beings are not immigrants. A huge majority of the world’s population is living in their country of citizenship and they are not immigrants. We all hope that they can be in democracies; in a democracy, people vote and decide their policies, but because immigration is not a right, when a population is facing the phenomenon of demands to entry by migrants, they have a margin to say yes or no, and often they say no. So how do you deal with that?

Photo by Nicolas Economou

First of all, you try to deal with the causes of migration because many of these people didn’t want to move, they were forced to move because of a war that has developed. And so, we have to change the regime of war. We have to attribute the consequence of starting a war on the country that started the war. The war in Iraq was started without UN authorisation by the United States, but the migrants coming as a consequence of the war in Iraq weren’t admitted to the US. They moved to Europe, and Europe should have called for international conferences to have the countries that were involved in the war in Iraq take more responsibility in welcoming the refugees who are the product of the war in Iraq and Syria.

Two European countries, Great Britain and France, actively involved themselves in the war in Libya, and this also had big consequences for migration. We go to war and then the consequence is not ours. The first response we have to give is to change the international legal status of going to war.

Basic human obligations

Then you have to remind every citizen that there are some basic human obligations in their own interests. If you marry a foreigner, you would like to live with your spouse. It can happen in any family that the son or the daughter falls in love with a person of another nationality, and this person should have the right to live with your son or daughter. So, if you take a case-by-case approach, you can convince the most reluctant people to accept migrants.

Photo by John_Silver

There is another way of convincing a reluctant population. In Sicily, some mayors discovered that migrants were arriving from abroad and bringing life back to villages or towns that had been abandoned by the domestic population, which had moved north. In many countries, we have abandoned villages whose mayors are looking for new inhabitants who can give new life to their territory. In addition, we have big cities that are happy to welcome new migrants.

Starting the conversation on migration

If you ask people whether they want more migrants, often, they will say no. But if your child marries a foreigner, would you agree that this foreigner can live with your child? Of course. If we need a baker because we don’t have any more bakers in the village, would you agree to bringing in a foreigner? Of course. Then, if you add all these individual situations, at the end, you have migration – but you have migration based on individual cases, and that is how you can convince the majority of people to accept migrants, who will always be a minority.

The way to address the issue of migration is not to declare that the others are racist, or that I am the one fulfilling human rights. No. It is to start a conversation. What’s the problem? Why do you think that? And to show examples and to debate and to convince. It’s sometimes complicated, but sometimes it’s obvious. In the recent coronavirus crisis, many people noticed that the doctors and the nurses who were saving their own lives and the lives of the people they care for were foreigners. When the Prime Minister of the United Kingdom, Mr Boris Johnson, came back from the hospital, he mentioned the names of his nurses and they were foreigners. That is a signal that in all societies foreigners are needed.