Human Rights of the Refugee Under International Law
by Dr. Ruwantissa Abeyratne
This is a disgrace. That we are letting people die and seeing dead bodies on the beaches, when together, Europe is such a wealthy place. We should be able to fashion a short-term response, not just a long-term response.
…Cardinal Vincent Nichols, Head of the Catholic Church in England and Wales
( September 4, 2015, Montreal, Sri Lanka Guardian) The website of RT Question More records that: “Europe’s migrant crisis has been dubbed the worst since WWII with a record number of 107,500 migrants crossing the EU’s borders in July. Tens of thousands of people are fleeing war and poverty in the Middle East and North Africa to start a new life in Europe, but many meet a tragic end there”.
The widely used definition of a refugee is: “a person who is outside their home country because they have suffered (or feared) persecution on account of race, religion, nationality, or political opinion; because they are a member of a persecuted social category of persons; or because they are fleeing a war”. There are hundreds of thousands of such people at the present time: over a million in Lebanon and hundreds of thousands in Jordan and Turkey. These people have been offered refuge and sustenance by these three countries. Additionally, thousands are streaming every day into Europe crossing Hungary, hoping to get to Germany. The horror stories are heartbreaking: from babies drowning at sea; to over 70 people suffocating to death in a van in Austria.
A word of caution has been issued that among those many fleeing to Europe are also economic refugees and migrants who are merely running away from their countries in search of a better life in Europe. This may well be the case but it is reasonable to believe that most of the vulnerable and helpless people seeking refuge in Europe are those that are fleeing war, trying to save their lives and those of their children.
The issue of refugees is a global one that goes back more than six decades. At its Thirtieth Plenary Meeting on 12 February 1946, the United Nations General Assembly adopted Resolution A/8(1), which recognized that the problem of refugees and displaced persons of all categories was one of immediate urgency. The Resolution went on to mark a clear distinction between genuine refugees and displaced persons, on the one hand, and war criminals, quislings and criminals, and others, who may claim to be refugees. Recognizing that the problem of refugees and displaced persons was an international one, the General Assembly recommended to the Economic and Social Council (ECOSOC) of the United Nations that the Council recognizes the principle that no refugees or displaced persons who have finally and definitely, in complete freedom, and after receiving full knowledge and facts, including adequate information from the governments of their countries of origin, expressed valid objections to returning to their countries of origin, shall be compelled to return to their country of origin. By this pronouncement Resolution A/8(1) became the first ever official international recognition that a genuine refugee could not be compelled to return to his country of origin.
What are these peoples’ rights at international law?
The human being at international law is collectively referred to as “humankind” encompassing all members of the human species as a whole , and it is in this context that the aviation perspective should look at the people affected by it both as a whole and in the singular context of the passenger carried by air. The Universal Declaration of Human Rights of the United Nations recognizes the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, and provides that everyone has the right to freedom of movement and residence within the borders of each state and everyone has the right to leave any country, including his own, and to return to his country. The Declaration also provides that everyone has the right to life, liberty and security of person, implying that such rights should not be arbitrarily taken away by any means.
If this be the case, and everyone has the right to freedom of movement and residence within the borders of each state and everyone has the right to leave any country, including his own, and to return to his country, what is the position of a borderless Europe where, States under the Schengen Agreement which allows free movement within the Schengen member States are holding back the refugees who wish to travel from one Schengen State to another?
The protection of human rights is the most significant and important task for the modern world, particularly since multi ethnic States are the norm in today’s world. The traditional nation State in which a district national group rules over a territorial unit is fast receding to history. Globalization and increased migration across borders is gradually putting an end to the concept of the nation State, although resistance to reality can be still seen in instances where majority or dominant cultures impose their identity and interests on groups with whom they share a territory. In such instances, minorities frequently intensify their efforts to preserve and protect their identity, in order to avoid marginalization.
The World Conference on Human Rights held in Vienna in 1993 recognized and affirmed that all human rights derive from the dignity and worth inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms, and consequently should be the principal beneficiary and should participate actively in the realization of these rights and freedoms. The Conference also reaffirmed the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law, stating that the universal nature of these rights and freedoms is beyond question.
The United Nations Millennium Declaration, contained in General Assembly Resolution 55/2 of 8 September 2000, recognizes that, in addition to separate responsibilities of States to their individual societies, they have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. States leaders recognized that as leaders, they had a duty therefore to all the world’s people, especially the most vulnerable and, in particular, the children of the world, to whom the future belongs. States reaffirmed their commitment to the purposes and principles of the Charter of the United Nations, which have proved timeless and universal, concluding that their relevance and capacity to inspire have increased, as nations and peoples have become increasingly interconnected and interdependent.
In the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms adopted by General Assembly Resolution 53/144 of 9 December 1998, participating States recognized in Article 1 that everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels. Article 2 of the Declaration states that each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice and to that extent each State is bound to adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the Declaration are effectively guaranteed.
Against the backdrop of the aforementioned international approach aimed at ensuring human rights and eschewing violence against nations and people, one of the worst incursions of human rights in the perspective of refugees in need of protection and care has been the dithering of States in Europe to come to an agreement on how these people can be assured of their fundamental human rights. This ambivalence has severely affected human rights and entitlement of the refugees to their peaceful enjoyment of life and good health.
