The picture of Aylan Kurdi, the three-year-old Syrian boy whose body washed up on the shores of a Turkish beach, has recently caused outrage around the world. The picture did more than just wake the whole world up. It showed us the sad realities of the effects of the Syrian crisis and the consequent desperate risks refugees are willing to take in the hope of better lives.
Aylan has been described in some media reports as a migrant, while others have called him a refugee. From a legal perspective, the words “refugee” and “migrant” are not synonymous.
A migrant is someone who goes to another country voluntarily in the hope of a better economic life. A migrant is not in fear of persecution.
A refugee is someone who flees his country because he faces an armed conflict or fear of persecution and thus needs protection of his basic rights. The 1951 Refugee Convention, an international treaty, defines “refugee” as any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Under international law, states have a legal obligation to keep their borders open to refugees. Thus the term “migrants” is used instead of “refugees” in order to divert attention from the moral and legal responsibilities of states to grant protection to “refugees”.
Aylan and his family were not migrants. Aylan's family was determined to escape from a war that destroyed Syria. They were escaping oppression in Syria and risking their lives to get away from intolerable conditions at home.
The terms should be distinguished from a third term, “asylum seeker”. The United Nations High Commission for Refugees defines “asylum seeker” as someone who has applied for protection as a “refugee” but is awaiting the status. Asylum seekers are people who move across borders in search of protection but may not fulfill the criteria laid down by the 1951 Refugee Convention.
Aylan and his family boarded a boat that day having failed to go to Canada because they did not qualify as “asylum seekers”. The basis for their rejection was that refugees living in Turkey were not regarded to be in immediate danger.
Sadly, Aylan's family was also not granted exit visas by the Turkish authorities since they did not have UNHCR referrals confirming their status as refugees.
Other treaties like the Convention on the Rights of the Child (CRC) also protect refugee children and they are said to be legally binding on countries. Under the CRC, states are required to “take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”
We do not want more incidents like Aylan's death taking over the news. Not just legally, but also morally, the world cannot afford to look the other way in the face an impending refugee crisis. This crisis has raised questions about Europe's policies and whether the notion of the European Union is still relevant. In a globalised, yet highly fragmented world, Europe must shoulder its responsibilities arising from the present crisis.
We all have a shared responsibility towards the refugees and to act in limbo at the moment would only make matters worse. However, the reaction from the global community has been mixed. Some countries like Germany have voluntarily opened their doors while others have closed them for the refugees. Some countries like Saudia Arabia, Kuwait, UAE and Qatar have not yet accepted any refugees.
We need to regain uniformity and prioritise this issue at this time of crisis instead of shifting blame on others. States need to figure out if they are ready to make sacrifices for the betterment of humanity.
We should not let innocent children suffer the fatal consequences of our mindless national and international politics. The onus ultimately is on the political rulers to act like human beings first and politicians second.
Children are always the most innocent targets during a disaster and perhaps if it wasn't for Aylan, the world would still be sleeping.
The writer is a lawyer with expertise in International Law.