WHERE ARE THE LEGAL AND LEGITIMATE LIMITS TO SECURITIZE HUMANITARIANISM?
3. Refugees unlawfully in the country of refuge
First, I examine whether the amendment to the Criminal Code, which makes the unlawful entry of the country a crime, contravenes the 1951 Convention on the Status of Refugees. According to Act CXL of 2015 on amendments of certain laws related to illegal immigration, unlawful crossing of border barrier7, vandalism of border barrier8 or obstruction of construction works on border barrier9 are crim-inal offences and are punished with imprisonment and expulsion. The new law states that ‘any person who enters the territory of Hungary by unlawfully crossing the barrier deployed for the protection of State borders is guilty of a felony pun-ishable by imprisonment not exceeding three years’10. In contrast, according to the 1951 Convention on the Status of Refugees (which Hungary ratified in 1989) ‘Con-tracting States shall not impose penalties, on account of their illegal entry or pres-ence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’11. Therefore, in principle, the amendment to Hungarian Criminal Code is inconsistent with the Refugee Convention. The fact that the entry or presence is unlawfully does not justify penalties. In R. v. Uxbridge Magistrates’ Court and Another, ex parte Adimi, the Royal Courts of Justice stated that protection applies equally to those who enter a country clandestinely12. Even administrative penalties and the
5 Act CXL of 2015
6 191/2015. (VII. 21.) Government Regulation 7 Section 352/A, Criminal Code
8 Section 352/B, Criminal Code 9 Section 352/C, Criminal Code 10 352/A of Act C of 2012 11 Art. 31, Refugee Convention
12 R. v. Uxbridge Magistrates’ Court and Another, ex parte, 1999
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tion of refugees are questionable13, but criminal penalties are clearly against the spirit and wording of the Convention; hence introducing such regulation can be construed as a breach of international law.
3.1 Reservations and derogations
Hungary ratified the 1951 Convention without any reservations. When analyzing derogations article 9 of the Refugee Convention is of interest since it states that state parties may take measures ‘in time of war or other grave and exceptional circumstances’ if ‘essential to the national security in the case of a particular person’ (Art. 9). The lack of specification in the phrase ‘other grave and excep-tional circumstances’ (ibid.) makes the clause vague: may ‘state of crisis due to the situation caused by mass immigration’ made by the Hungarian government be interpreted as exceptional circumstances? To ascertain this, I first look into the Hungarian legislation; the declaration about state of crisis is bound to concrete criteria (number of arriving asylum seekers per day/week/month or asylum seek-ers present in transit zones per day/week/month) but it can be declared even in any situation connected to migration which endangering public safety. This makes the legislation vague. In fact, a state of crisis due to the situation caused by mass immigration was declared in six of the nineteen Hungarian counties14 and was subsequently extended to the whole country15 and it is also expanded every six months at least until March 202116; yet the number of arriving asylum seekers17 remains below the limit determined by the legislation. Such an arbitrary decla-ration of crisis is questionable by both international and domestic standards as the principle of legal certainty is threatened. Declaring that a state of crisis is similar to state of emergency in Hungarian law which can be announced in case of industrial or natural disaster in domestic law.18 As mass immigration does not fit into either of these categories, the arbitrary introduction of a state of crisis is
13 Goodwin-Gill, Guy S.: Article 31 of the 1951 Convention Relating to the Status of Refu-gees: non-penalization, detention, and protection. In E. Feller – V. Türk – F. Nicholson, Refugee Protection in International Law: UNHCR’s Global Consultations on Interna-tional Protection, Cambridge: Cambridge University Press, 2003, 217–218.
14 Köves Nóra: “Menekültügy – humanitárius vagy politikai válsághelyzet?”. Fundamentum, vol. 19, 2015, no 4., 73–82.
15 41/2016. (III. 9.) Government regulation 16 411/2020. (VIII. 30.) Government regulation
17 Amnesty International: “Annual report”. 2016. https://www.amnesty.org/en/latest/re-search/2016/02/annual-report-201516/ (Accessed: 11-01-2021)
18 Art. 53, Fundamental Law of Hungary
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worrisome and begs questions such as what kind of cases would cause a state of crisis in the future.19
Further, it is necessary to examine if there is a potential threat to national security. National security can be understood as broader than armed conflict, and can include threats to overthrow the state by illegal means, terrorism or other serious disturbances to public order.20 Although mass immigration is conflated with terrorism, Article 9 refers to derogations against a ‘particular person’21: ‘the continuance of such measures is necessary in his case in the interests of national security’22. Accordingly, the derogations must be applied on an individual basis, on a case-by-case manner. This means that mass immigration and actual, or per-ceived, terror threats in general are not overriding reasons to derogate the rights in the 1951 Convention. Thus, in this case, the amendment to the Hungarian Criminal Code which makes illegal border crossing a felony generally does not seem to be a justifiable modification on the ground of derogation. Consequently, as Hungary ratified the Convention without reservations and the ‘state of crisis’
amendment does not constitute a legitimate derogation, the obligation on the Hungarian state to refrain from imposing penalties against refugee on the basis of illegal border crossing remains.
3.2 Limitations
According to Article 31 (Refugees unlawfully in the country of refugee) of the Refugee Convention, the obligation to refrain from imposing penalties against refugee only applies if the refugees have applied ‘without delay at the authorities’
and ‘show good cause for their illegal entry or presence’. According to the Office of the United Nations High Commissioner for Refugees (UNHCR) without delay and good cause depends on the circumstances of the case23. Also, the Regional Superior Court (Landesgericht) in Münster found that without delay should be considered on a case-by-case basis as there is no general time limit (the Hungar-ian Refugee Law is also silent about it) for applying at the authorities.24 Thus, it must be applied on an individual basis. When discussing the 1951 Convention,
19 Tóth Judit: “… a hazájukat elhagyni kényszerülõk emberi jogainak és alapvető szabadságainak védelmére”. Fundamentum, vol. 19, 2015, no. 4., 61–66.
20 Edwards, Alice: “Temporary Protection, Derogation & the Refugee Convention”. Mel-bourne Journal of International Law, vol. 13, 2012, no. 2., 595–635.
21 Art. 9, Refugee Convention 22 ibid.
23 UNHCR, 2001
24 LG Münster Nos. 39 Js 688/86 (108/88)
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the United Kingdom representative, Mr. Hoare stated that fleeing persecution itself is good cause for illegal entry and this again requires case-by-case examina-tion, but there could be other good causes25 since it is meant to be a wider concept then persecution. A further limitation set out in Article 31 is as follows: an asylum seeker ought to be ‘coming directly from a territory where their life or freedom was threatened in the sense of Article 1’26. The UNHCR states that refugees are not required to come directly from their country of origin27. Article 31 applies to persons who have briefly transited other countries and did not find protection in the first country or countries they flee, or who have good cause for not applying in that country or countries.28 Understanding directly as if they went across a safe country once, they cannot be lawfully in another country is unrealistic (such an interpretation would cause disproportionate burden for the countries neighbor-ing conflict zones; unitneighbor-ing families would be difficult; etc.) and does not meet the object and purpose29 of the Refugee Convention. Even case law indicates the rejec-tion such an interpretarejec-tion: the Oberlandesgericht Celle and the Landesgericht Münster found that even if refugees have passed through a third state when fleeing to Germany, they can claim for exemption from penalties for illegal entry.30 Further, such an interpretation can lead to chain-refoulement–the practice when the state of refuge transfers a refugee to a third state, and that state then expels the refugee further to an unsafe country, which is again against the object and purpose of the Convention.31
In conclusion, as there is no reservation made by Hungary and derogation only can be made on case-by-case manner with respect to a particular person (Art.
9), making a general policy on penalization of refugees does not meet the inter-national standards required by the 1951 Convention on the Status of Refugees.
The in-built limitations are not reason for not applying the right to non-penali-zation given by the Convention either. Therefore, a general policy may be a breach of duty.32 In such case the question is whether, ‘in the given case the system of administration has produced a result which is compatible with the pertinent
25 Goodwin-Gill, 2003.
26 Art 31, Refugee Convention
27 UNCHR: “Summary Conclusions: Article 31 of the 1951 Convention Expert Roundtable organized by the United Nations High Commissioner for Refugees and the Graduate Institute of International Studies, Geneva, Switzerland”. 2001. http://www.unhcr.
org/419c783f4.pdf (Accessed: 11-01-2021) 28 Goodwin-Gill: o.c.
29 Art. 31, Vienna Convention
30 Decision of 1 Ss 545/86, NvwZ 1987 and LG Münster, Nos. 39 Js 688/86 (108/88) 31 Goodwin-Gill: o.c.
32 ibid.
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principle or standard of international law’33. In addition, by penalizing people who fall within the scope of Article 31 of the 1951 Convention may be considered a violation of the right to fair trial and the right to a remedy.34