Con Human Rights

1.

Refugees suffer many violations of their human rights.

Ann Lise Purkey, Faculty of Law, McGill University, Montreal, 2014, Journal of Refugee Studies Vol. 27, No. 2, A Dignified Approach: Legal Empowerment and Justice for Human Rights Violations in Protracted Refugee Situations, p. 260-1

Although it is well accepted that the law and legal institutions and mechanisms can play an important role in ensuring that every individual within a society is able to live a dignified life in which their rights are fully realized, this knowledge has had little impact on the way in which states and the international community at large address the situation of one of the world’s most vulnerable groups of people: individuals caught inprotracted refugee situations. In many ways, protracted refugee situations are a form of social, political, legal and even economic purgatory for those trapped within them. These refugees often share many of the characteristics of other marginalized and vulnerable groups including poverty, discrimination, lack of access to services, social exclusion, and routine and systemic human rights violations, but face the added challenge of lacking an effective citizenship and/or formal legal status in the country in which they are living. The great number of refugees caught in increasingly prolonged states of ‘rightlessness’ presents a fundamental challenge to the international human rights regime and demands a reimagining of responses to these situations, The rightlessness of refugees is not a given; the rights of refugees are protected under international human rights law, the 1951 Refugee Convention, regional human rights treaties and often domestic human rights law. The problem arises with the implementation and enforcement of these rights. In practice, refugees in protracted situations rarely benefit from anything near the full range of rights to which they are legally entitled. In these situations, the rights actually enjoyed by refugees are contingent upon a broad range of political and economic factors including the level of international assistance provided and the perceived potential outcome of the refugee crisis (Goodwin- Gill and McAdam 2007). Host states often lack the necessary resources and have little political incentive to guarantee a broad range of rights to refugees. Thus, instead of being regarded as individuals in need of protection or as potential assets to the state, refugee communities are more often viewed as burdens and sources of insecurity to be contained and minimized (Loescher and Milner 2004). The dignity and human rights of refugees are made subordinate to the entrenched interests of the host state, other states, humanitarian actors and donors.

2.

Individuals have a human right to seek protection from physical violence

Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard’s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, “Arendt’s Children: Do Today’s Migrant Children Have a Right to Have Rights?” Project Muse.

http://muse.jhu.edu/search/results?action=search&searchtype=author&section1=author&search1=%22Bhabha%2C%20Jacqueline.%22.

Access to basic shelter, subsistence level welfare payments, and in-kind benefits is as fundamental to modern conceptions of rights in general, and children’s rights in particular, as is protection from physical violence. The same is true for access to such social and economic rights as education and health care, as the Committee on the Rights of the Child has frequently noted in its concluding observations on states parties’ periodic reports. Yet here too, public officials operate under personal codes of conduct that translate into dramatic rights denials. Sylvia da Lomba has remarked, “Curtailments of social rights for irregular migrants in host countries have become essential components of restrictive immigration policies. . . . The threat of destitution as a deterrent against irregular migration generates acute tensions within host states between immigration laws and human rights protections.” 39 Consider this Spanish case: Sixteen-year-old ‘Abd al Samad R. has been in Ceuta [an autonomous Spanish city located on the Moroccan coast] for about five years, including two and a half years living at the San Antonio Center. While at San Antonio he was diagnosed as suffering from renal disease, a potentially life-threatening medical condition, and he received medical treatment. Then, in October 2001 he was told to leave San Antonio, apparently for disciplinary infractions. When we interviewed ‘Abd al Samad on November 8, 2001, he was living with a group of other children and youth in makeshift hovels squeezed between a breakwater and piles of ceramic tiles and other building supplies. He had received no medical treatment since leaving San Antonio, although he was frequently in severe pain. “The pain comes often, when it is cold, or when someone hits me,” he said. “I tried to go to the hospital when I was in pain but they wouldn’t admit me. They won’t accept you at the hospital unless some one from San Antonio comes with you. When the pain comes I can’t move so who will come to take me to the hospital?” Without official confirmation of the child’s social entitlements, he remained outside the categories established by the state—in effect not a person before the law. These exclusionary attitudes were translated directly into rightlessness. The acute risks to which this willful exclusion, combined with the fear of detection as an irregular migrant by state officials, can give rise were noted by the European Court of Human Rights in the case of Siliadin v. France. In this case, an unaccompanied child from Togo, “unlawfully present in [France] and in fear of arrest by the police . . . was . . . subjected to forced labour . . . [and] held in servitude,” compelled to carry out housework and child care for fifteen hours a day without holidays. 41 The Court commented that the applicant “was entirely at [her employers’] mercy, since her papers had been confiscated . . . [S]he had no freedom of movement or free time. As she had not been sent to school . . . the appli-cant could not hope that her situation would improve.” 42 Irregular migration status increases the risk of invisibility and thus gross rights violations. As the Court pointed out, states parties must recognize this serious risk and act “with greater firmness . . . in assessing the infringements of the fundamental values of democratic societies.” In other words, according to the Court, states have an obligation to “see” Arendt’s children—willful and selective blindness is not a legitimate option .

3.

Refugee human rights are protected under several Conventions.

Dieter Kugelmann, lawyer and professor, March 2010, Refugees, Max Planck Encyclopedia of Public International Law,

http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e866 DOA: 9-25-15

Sources of Human Rights for Refugees

38 There are relevant provisions on refugees in human rights instruments. The Universal Declaration of Human Rights stipulates some habeas corpus rights which are applicable without discrimination (Art. 9 UDHR), the right to seek and to enjoy in other countries asylum from persecution (Art. 14 UDHR), the right to a nationality (Art. 15 UDHR), and the right to freedom of movement and residence within the borders of each State (Art. 13 UDHR; Movement, Freedom of, International Protection). The latter right is also provided for in Art. 12 ICCPR. The two Covenants are based on the non-discriminatory character of human rights. According to Art. 2 (1) ICCPR, each State Party must ensure the rights in the ICCPR to ‘all individuals within its territory and subject to its jurisdiction’. Referring to this provision, the Human Rights Committee has adopted General Comment No 15: The Positions of Aliens under the Covenant ([9 April 1986] GAOR 41st Session Supp 40, 117), in which it holds that the ICCPR does not recognize the right of aliens to enter or reside in the territory of a State Party. Yet it also states that in certain circumstances the ICCPR may afford protection to an alien ‘even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise’ (No 5 General Comment No 15).

39 The protection of children seeking refuge is guaranteed by Art. 22 Convention on the Rights of the Child (‘CROC’ [adopted 20 November 1989, entered into force 2 September 1990] 1577 UNTS 3). The duty of States to protect the family unity of refugees is in general affirmed by State practice, and the necessary opinio iuris can be derived from legal material. The obligation of States to protect the family is laid down in Art. 23 ICCPR and relating to family unification in Art. 10 CROC. The obligations of States do not necessarily result in an individual right of a family member.

40 The European Court of Human Rights (ECtHR) holds the view that States have the right to control the entry, residence, and expulsion of aliens (Vilvarajah v the United Kingdom [ECtHR] Series A No 215 at 34 para. 102). There is no right to political asylum in the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) or its Protocols. Nevertheless, the ECtHR holds that the rights safeguarded by the ECHR can provide for a legal position of aliens implying far-reaching State obligations towards refugees.

41 Within the scope of Art. 3 ECHR, the ECtHR has strengthened the protection of aliens from torture or inhuman or degrading treatment or punishment (eg Chahal v UK [ECtHR] Reports 1996-V 1831 at 21 para. 74); see also Human Dignity, International Protection). It is well established in the case-law of the ECtHR that expulsion or any other kind of removal by a State Party may engage the responsibility of that State. If substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Art. 3 ECHR in the receiving country, Art. 3 ECHR implies the obligation not to expel the person in question to that country (see Soering Case [ECtHR] Series A No 161 at 35 paras 90–

91; Cruz Varas v Sweden [ECtHR] Series A No 201 at 28 paras 69–70). In favour of third-country nationals, the right to family life guaranteed in Art. 8 ECHR can—on exceptional conditions—encompass the right to remain in a country (Dalia v France [ECtHR] Reports 1998-I 76 at 91 para. 52; Boultif v Switzerland [ECtHR] Reports 2001-IX 119 at 130 para. 46). For specific situations, the ECtHR holds that the right to family life provides for the right to legalize the stay by granting a formal residence permit or a similar document (Sisojeva v Latvia [ECtHR] App 60654/00 paras 104–107; in this case, the Grand Chamber struck the application in its judgment of 15 January 2007; in Rodrigues da Silva v Netherlands [ECtHR] Reports 2006-I 223, the Grand Chamber rejected the application on 3 July 2006).

4.

There is an obligation to protect the human rights of the stateless, as their rights will not otherwise be protected

Seyla Benhabib, professor of political science and philosophy at Yale, June 2004, “The Rights of Others.” http://books.google.com/books?id=3cuUHAJNmuYC&dq=Seyla+Benhabib+“Rights+of+Others”&printsec=frontcover&source=bl&ots=d-pqxd2bJq&sig=Oyb7-wKlE-80M8AlnsdkH3bLD80&hl=en&ei=rqtKSqWVIYqmNurxjIoO&sa=X&oi=book_result&ct=result&resnum=1

After Kant, it was Hannah Arendt who turned to the ambiguous legacy of cosmopolitan law, and who dissected the paradoxes at the heart of the terminally based sovereign state system. One of the great political thinkers of the twentieth century, Hannah Arendt argued that the twin phenomena of "political evil" and “statelessness” would remain the most daunting problems into the twenty-first century as well (Arendt 1349.;,134; [1951]1968;seeBenhabib[1996] 21103). Arendt always insisted that among the root causes of totalitarianism was the collapse of the nation—state system in Europe during the two world wars. The totalitarian disregard for human life and the eventual treatment of human beings as "superfluous" entities began, for Hannah Arendt, when millions of human beings were rendered “stateless" and denied the "right to have rights." Statelessness, or the loss of nationality status, she argued, was tantamount to the loss of all rights. The stateless were deprived not only of their citizenship rights; they were deprived of any human rights. The rights of man and the rights of the citizen, which the modem bourgeois revolutions had so clearly delineated were deeply imbricated. The loss of citizenship rights, therefore, contrary to all human rights declarations, was politically tantamount to the loss of human rights altogether. This chapter begins with an examination of Arendt contribution; thereafter, l develop a series of systematic considerations which are aimed to show why neither the right to naturalization nor the prerogative of denaturalization can be considered sovereign privileges alone; the airs: is a universal human right, while the second - denaturalization · is its abrogation.

5. The Right to asylum is protected by international human rights law

Maria-Teresa, Gil BazoSenior Lecturer in Law, Newcastle Law School (Newcastle University), International Journal of Refugee Law, 2015, Vol. 27, No. 1, 3–28, Asylum as a General Principal of International Law, p. 5

These instances show that the question of asylum is very much alive and that the debate as to its nature and content remains controversial. The purpose of this article is to explore the nature of asylum as a general principle of international law. The analysis that follows is informed by the understanding that ‘[t]he development of the law on asylum is inextricably bound up with the general development towards the greater recognition and protection of the human rights and fundamental freedoms of the individual by international law’, including the right to asylum as a human right. The analysis in this article is also grounded in international law itself. In this regard, it is worth noting that, while in common law judicial decisions constitute primary sources of law, in international law they are secondary sources and enjoy the same status as the views ‘of the most highly qualified publicists of the various nations’ (article 38(d) of the Statute of International Court of Justice (ICJ), emphasis added). Article 59 of the ICJ Statute further affirms that ‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case’. Judicial decisions will be considered in this article, as appropriate, insofar as they constitute an expression of state practice, or if they reflect the authentic interpretation of treaties by international courts or human rights monitoring bodies, but not as primary sources of law or authority of higher rank than the most qualified doctrine.

Extra stuff

These rights are set out in the International Covenant of Civil and Political Rights (ICCPR), International Covenant of Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC)

Human rights are rights a person is guaranteed on the basis only that they were born as a human being. Some examples

- the right to life, liberty and security of person;

- the right to freedom from torture or cruel or inhumane or

degrading treatment or punishment;

- the right to freedom of movement and residence within the borders

of each state;

- the right to freedom of thought, conscience and religion;

- the right to freedom of opinion and expression;

- the right to a standard of living adequate for the health and well-

being of the person and their family, including food, clothing,

housing, medical care and necessary social services;

- the right to education

- freedom from discrimination; and

- respect for the unity of the family.

http://lirs.org/wp-content/uploads/2014/08/17.-What-are-refugee-rights-under-international-law.pdf

- right of non-refoulement

a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion"