Jan 8th, 2016 by Jake Sher
The plight of Syrians—many of whom would likely receive refugee status in most states that are signatories to the 1951 Convention and 1967 Protocol on the Status of Refugees—is evidenced by their “temporary protection” status in Turkey under the LFIP (Law on Foreigners and International Protection). While Turkey is a signatory to both the 1951 Convention and the 1967 Protocol, it has raised a geographical limitation with regards to the 1967 Protocol. Under this reservation, persons of non-European origin fleeing to Turkey receive rights limited “to temporary asylum before being resettled in a third country.” While the grant of this status is significantly more generous than the rights granted to those fleeing persecution who seek resettlement in many other states in the Middle East, the unfortunate result of Turkey’s stance is that the mass influx of Syrians fleeing the protracted and bloody civil war in their home country may not claim the full panoply of rights that would be guaranteed to them under the 1951 Convention and the 1967 Protocol—at least, not while they remain in Turkey.
Turkey has received the largest number of Syrian refugees due to its open border policy. At present, over 2 million Syrians have sought refuge in Turkey. In November of 2014, Turkey’s Finance Minister reported that the financial costs associated with hosting Syrian refugees in Turkey have exceeded $4.5 billion, including $2.3 billion spent by the Turkish central government. Syrians under the LFIP’s temporary protective status remain in a state of relative limbo.
The rights under Turkish law for those under the LFIP’s temporary protection provisions are limited. While “applicants and international protection beneficiaries as well as their legal representative or lawyer may examine or obtain a copy of the documents in the personal file pertaining to the applicant or international protection beneficiary,” neither an applicant nor counsel may “examine or obtain a copy of documents … relating to national security … protection of public order … [and] prevention of criminal activity.”
Boston University School of Law’s International Human Rights Clinic reports that only lawyers registered in Turkey are able to access detention centers, and must show authorization for particular clients before they are able to access the detention centers; in addition, these Turkish attorneys are unable to gain authorization to visit clients if they do not know the identity of a detainee they intend to visit within the center.
Regardless of how Turkish authorities choose to interpret the LFIP, the rights afforded to Syrians under temporary protection must include their legal rights under international law and customary norms. These include, at a bare minimum, non-refoulement (which is a jus cogens norm) and other positive rights granted under international treaties, such as the International Covenant on Civil and Political Rights, to which Turkey is a state party. As “persons” under the ICCPR, relevant rights for those under temporary protection include the rights of all persons within the territory of a state to be applied without distinction based upon (among other distinctions) “race, … language, religion, political or other opinion, national or social origin, … birth, or other status.” In addition, Article 14 of the ICCPR requires an application of a minimum of due process to all persons within a signatory state, who “shall be equal before the courts and tribunals.” Moreover, under the same article, “[i]n the determination of any criminal charge … or of … rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Finally, ICCPR Article 26 requires that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law” with regards to affiliation with the same protected grounds enumerated in Article 14. These rights are derogable, but only under limited circumstances.
This failure of due process and equal protection under law likely runs afoul of the ICCPR, which Turkey signed on August 15, 2000 and ratified the treaty on September 23, 2003. While states may derogate from Articles 2, 14, and 26 of the ICCPR in situations involving “a public emergency that threatens the life of the nation and the existence of which is officially proclaimed,” it is required that such measures must not be “inconsistent with their other obligations under international law,” and must not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” The severity demanding a public emergency exists “only if and to the extent that the situation constitutes a threat to the life of the nation.” While the presence of the PKK and ISIS at and within Turkey’s borders might arguably meet such a standard, Turkey has not declared such a public emergency, or a relevant derogation from the ICCPR, as of the present date (with regards to the Syrian conflict or otherwise); it most certainly is capable of doing so, having elected to derogate from human rights treaties on thirty-four separate occasions over the course of thirteen years in total.
Millions of Syrians fleeing the conflict in their homeland have remained in Turkey. With no sign of an end to the conflict, Syrians are likely to remain in Turkey for the foreseeable future. Their treatment at the hands of the Turkish government and its people are likely to leave an indelible mark upon them, upon the Middle East in general, and upon Turkey in particular, if efforts to preserve protections clearly enumerated under international human rights conventions are not corrected.
Sources and Related Readings:
Yabancılar ve Uluslararası Koruma Kanunu [Law on Foreigners and International Protection], Law No. 6458 of April 4, 2013 (Turk.) [hereinafter “LFIP”], (unofficial English translation)
Convention Relating to the Status of Refugees, Aug. 24, 1951, 189 U.N.T.S. 137.
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
Reservations and Declarations on the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (“The Government of Turkey . . . applies the Convention only to persons who have become refugees as a result of events occurring in Europe.”).
International Covenant on Civil and Political Rights, Nov. 3, 1972, 999 U.N.T.S. 171.
Sarah Bidinger, Note, Syrian Refugees and the Right to Work: Developing Temporary Protection in Turkey, 33 B.U. Int’l L.J. 223 (2015) (noting that “Prior to April 2014, Syrians were informally allowed in Turkey by means of a government directive on temporary protection.”).
OHCHR, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/30/48, GE.15-13719(E) (Aug. 13, 2015).
Genocide and Mass Atrocities Alert: Syria – Updated, Genocide Watch (Apr. 26, 2013).
UN Security Council, Statement [made on behalf of the Security Council, at the 7504th meeting, 17 Aug. 2015, in connection with the Council's consideration of the item entitled "The situation in the Middle East"] S/PRST/2015/15 (Aug. 17, 2015).
Syria’s Refugee Crisis: Public Health Challenges, Columbia Univ. (Oct. 20, 2015) (video commentary by Dr. Neil Boothby of the Mailman School of Public Health).
At a glance: Syrian Arab Republic, UNICEF (updated Dec. 31, 2013) (last visited Dec. 10, 2015) (noting a net primary school attendance rate among Syrian male children of 86.9%, and a net primary school attendance rate among Syrian female children of 86.4%).
John Cassidy, The Economics of Syrian Refugees, The New Yorker (Nov. 18, 2015).
No Escape: Civilians in Syria Struggle to Find Safety Across Borders, Norwegian Refugee Council (Nov. 13, 2014).
Ercüment Tezcan, Legal Status of the Thousands Fleeing From Syria, 5 USAK Yearbook 283 (2012).
Deborah Amos, Gulf States Fend Off Criticism About Doing Little For Syrian Refugees, NPR.org (Sept. 20, 2015).
Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331.
Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1153.
Sarah Bidinger et al, Working Paper, Protecting Syrian Refugees: Laws, Policies, and Global Responsibility Sharing, Boston University School of Law International Human Rights Clinic (2014).
Manfred Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary (2nd rev. ed., Kehl am Rhein: Engel, 2005).
Emilie M. Hafner-Burton, Laurence R. Helfer, and Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties, 65 Int’l Org. 673 (Aug. 19, 2011).
Kemal Kirişci, Not Likely to Go Home: Syrian Refugees and the Challenges to Turkey— and the International Community, Brookings Inst. (Sept. 2015).