The legality and effectiveness of a border wall as an instrument of reduction of influx of refugees under the 1951 Refugee Convention

Szymon Zaręba

Polska Akademia Nauk, Instytut Nauk Prawnych

Abstract

As a rule, international law does not prohibit building border walls. However, the consequences of construction or existence of a wall, when assessed from the point of view of some customary norms or a treaty, may indirectly affect its legality. One of such treaties is the 1951 Refugee Convention (the Convention). The analysis demonstrates that it is not possible to call a wall illegal in the light of Articles 26 (freedom of movement) and 31 para. 2 (refugees unlawfully in the country of refuge) of the Convention, since, inter alia, both apply to the people already present in the territory of a given State. The only provision of the Convention which under certain conditions may allow to question the legality of existence of a border wall is Article 33 of the Convention, which establishes the principle of non-refoulement. To make it possible, however, several conditions need to be fulfilled simultaneously. First, a broad interpretation of Article 33 para. 1 must be adopted, which covers also the people who come at the border but have not crossed it yet. Second, the wall must be placed on the border with a State where the life or freedom of at least some of the people seeking refuge in the State building the wall may be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Third, the policy of the State which has built it must indicate that the State does not use the wall simply as a means of regulation of the mass influx of people seeking refuge but as a preventive measure combined with other measures aimed at deterring the would-be refugees. The assessment of the effectiveness of the wall as an instrument designed to curb the mass influx of refugees is not very favourable. Undoubtedly, as a manifestation of sovereign power of a State over its territory, the border fence allows the State to control its border traffic much more effectively. It also helps to keep a large number of people seeking refugee protection “from the procedural door”, by not allowing them to enter the territory of the State building the wall and preventing the rise of any obligations towards them on behalf of said State – at least according to a more traditional interpretation of the principle of non-refoulement. Still, the wall does not relieve the building State from the obligation to at least process the claims for refugee protection submitted by the people who enter border crossings or get to the other side of the border at least for a short time in another way. Thus, as such, it is not a fully effective measure which would completely absolve the State from any obligations towards the people coming at the border and trying to cross it.

Keywords:

border wall, refugees, Geneva convention, Refugee Convention, non-refoulment