This is a matter of politics because, in addition to law, it involves national security and cultural, historical, emotional, economic and other factors. The basic rule is that a sovereign state has the right to decide which foreigners to admit on its territory.

It may voluntarily surrender or restrict this right. For example, EU member states have accepted a complex system of binding commitments giving their citizens a great degree of freedom of movement on their territories.

Such freedom is a desirable political and economic objective and the resulting problems are a price worth paying.

The Refugee Convention of 1951 makes an exception to the rule, and as an exception it must be interpreted restrictively. Article 33, ‘Prohibition of expulsion or return’ (‘refoulement’), says that no country “shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

This prohibition is not absolute. A refugee who threatens national security or has been convicted of a particularly serious crime may be expelled; and, of course, not all those who claim to be refugees are recognised as such.

In addition, the preamble considers “that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem … cannot be achieved without international co-operation.”

A country’s obligation to accept refugees is balanced by other countries’ obligation to help it carry an unduly heavy burden.

In other words, a country must abide by the law but it has the right of self-defence. Killing is a crime but not if committed in self-defence, as no one has an obligation to suffer physical harm and everyone has the right to prevent it.

In a Maltese court, the jury decides if a crime is justified or excused in the particular circumstances of the case. Similarly, in the case of an influx of refugees: it depends on circumstances.

As a result of the current civil war in Syria, refugees are fleeing into neighbouring countries. But the circumstances of Turkey (area about 780,000 square kilometres) differ from those of Jordan (area 90,000 square kilometres).

A bearable influx for Turkey may be a national catastrophe for Jordan, unless the “unduly heavy burden” is alleviated by other countries, and it would have the right to prevent it from happening.

Who decides that the tipping point has been reached and that an apparent infringement of the law is justified as an act of self-defence?

Certainly not NGOs, which have enthusiasm and shouting power but lack democratic legitimacy. Certainly not religious leaders, whose competence is limited to the spiritual domain and who usually have followers in several nation states with potentially conflicting interests.

In political terms, responsibility lies with the national authorities. This is particularly so in a democracy when the government enjoys a clear majority and has a specific mandate on the matter.

Why not the European Court of Human Rights judging on the basis of the European Convention of Human Rights?

Together with religious leaders and NGOs, the Nordic countries form a triptych of preachers we have to suffer in today’s Europe

The Convention is subject to political and subjective interpretation. The court does not reach its decisions in a vacuum unaffected by pressures and prejudices. And this is quite apart from the political thinkers in judges’ clothing.

The court is not above criticism, especially in cases of asylum and immigration, particularly those involving interim measures. An article ‘The Court of Strasbourg acting as an Asylum Court’ by Marc Bossuyt, president of the Belgian Constitutional Court, makes good reading in this regard. (See European Constitutional Law Review, 8: 203-245, 2012.)

In addition, the court’s judgments may be used loosely as political tools. For example, in the much-quoted case ‘Hirsi Jamaa and Others v. Italy’ (23.02.2012), the court confined “its examination of the case to the situation prevailing in Libya at the material time”.

This has not prevented enthusiasts from extrapolating its conclusions to other cases occurring at different times and even to hypothetical cases.

The court’s tendency to drift into politics is well-known. A high-level, inter-governmental conference on the court’s future, held in Izmir, Turkey, in April 2011, recalled that “the court is not an immigration appeals tribunal” and invited it “when examining cases related to asylum and immigration, to assess and take full account” of domestic procedures and “to avoid intervening except in the most exceptional circumstances”.

This was reaffirmed by British Prime Minister David Cameron in a major speech in Strasbourg in January 2012.

While reiterating Britain’s commitment to the Convention and the court, he complained “that not enough account is being taken of democratic decisions by national parliaments”.

He recalled that “at Izmir we collectively invited the court to avoid intervening except in the most exceptional circumstances … In other words it should not see itself as an immigration tribunal”.

The bias does not always lie with the judges. After 14 years as Malta’s Ambassador to the Council of Europe, I have some idea of the depth and extent to which the UNHCR and some NGOs have infiltrated the staff of the organisation, including those doing preparatory work for the judges. A self-perpetuating network systematically weighs on decisions all along the line.

An NGO may make an input to reports by Council of Europe bodies, such as the CPT (committee against torture), ECRI (commission against racism), the Commissioner for Human Rights and others.

The same NGO may then use these reports in submitting an intervention to the court. The cherry on the cake will be a consultancy contract to help the NGO write a report for the Parliamentary Assembly. Considering that the same NGO works in similar ways in Geneva, Brussels, London and elsewhere, a handful of people can thus become ‘the voice of the international community’ on matters of asylum and immigration in Malta.

Another source of bias is the influence of the Nordic countries. They have succeeded in cornering several key posts relating to human rights in Europe and, convinced of their moral superiority over others, keep pushing their priorities at the expense of countries located elsewhere on the map.

Together with religious leaders and NGOs, the Nordic countries form a triptych of preachers we have to suffer in today’s Europe.

But should they decide for all of us? That’s the question. Should decisions be reached according to the amount of decibels emitted rather than according to the people’s will?

Should the self-appointed arbiters of good taste, morality and political correctness force the people to accept the unacceptable?

When the chips are down, only the people know what is in their own best interest and only the national government represents the people.

Joseph Licari was Malta’s Ambassador to the Council of Europe (1999-2013).