Moving Beyond the Asylum Muddle

September 17, 2015

James Hathaway
RefLaw, Editorial Advisory Panel
University of Michigan Law School, James E. and Sarah A. Degan Professor of Law

Hungary’s decision this week to seal its border with Serbia with massive coils of barbed wire is an affront to any notion of good faith implementation of refugee law obligations.  Thousands of refugees from Syria, Afghanistan and other clear refugee-producing states are by all accounts the majority of those seeking entry.  Despite the fact that nobody has seriously questioned the bona fides of these refugees, Hungarian Prime Minister Viktor Orban continues to defend his hostile measures on the grounds that he is acting to preserve a “Christian Europe.”  This goal – even if thought politically legitimate – is of course legally irrelevant to Hungary’s duty of non-refoulement under refugee law.

While the clearly discrimination-based rationale offered for the Hungarian response may suggest that rationality is not at play in Orban’s decision, the reluctance of not only Hungary – but other frontline states as well – to embrace the call by European Commission President Junker for replacement of the lopsided Dublin regime with a meaningful system of burden and responsibility sharing is hugely short-sighted.  The Dublin regime was a terrible deal for the states of Europe’s periphery, essentially foisted on them as a condition for gaining the benefits of EU membership.  But even as the Commission President offers these clearly overburdened countries a chance to escape the strictures of Dublin – at least in the present context, and potentially for the future – they have acted in what seems an extraordinarily petulant fashion, summarily rejecting his offer.  This is a move I believe they will come to regret.

It is of course very difficult to speak sensibly about an EU – much less a global – system for managing refugee protection in the midst of a crisis.  Just as there would be little interest in selling home insurance while fires are raging in a given neighborhood, so too President Junker’s wise and sincere effort to rework EU asylum rules may simply be the right idea, but offered at the wrong moment.  But make no mistake:  it is the right idea, albeit one that in my view must be moved from a purely EU context to the global level.

In my commentary, I set out why I believe the world cannot afford to persist with the present dysfunctional approach to implementing refugee law obligations in an atomized way.  Drawing on the overwhelmingly positive examples of the CPA for Indochinese refugee, of CIREFCA in Latin America, and of ICARA in Africa, it is time to learn the lessons of history and to systematize and adapt them to modern conditions.  Never again should refugees be forced to risk their lives in pursuit of protection only to find that the international community is incapable of implementing the obligations it has agreed to.

Read James Hathaway’s full commentary of Hungary’s decision here.

Suggested Citation: James C. Hathaway, Moving Beyond the Asylum Muddle, RefLaw (Sept. 17, 2015),


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