REFUGEES' RIGHTS

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Many refugees often find themselves in detentions and considered as second class citizens often subjected to inhumane treatment by their host countries just for being refugees. This article argues
that refugee should be accorded the same rights as citizens of their host countries for the fulfilment of International Human rights law.

Submitted: February 27, 2018

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Submitted: February 27, 2018

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“SHOULD REFUGEES BE GUARANTEED AND ENJOY THE SAME RIGHTS AS CITIZENS OF THEIR HOST COUNTRIES?”

By Prince Osei Akowuah (Article written in 2014 and updated in 2018 for publication)

 

Since 1951, the Refugee Convention has been the governing legal standard under which the legal status, rights and obligations of refugees traditionally have been defined and enforced (Gilbert, 1995). Found on the principles set forth in the UN Universal Declaration of Human Rights that "human beings shall enjoy fundamental rights and freedom without discrimination" (Gilbert, 1995:219), contracting states parties entered into it with the commitment to assure refugees the widest possible of these fundamental rights and freedoms. However, with refugees’ laws largely state-centred on the notion that "individuals need to belong to a state to ensure their protection and acquisition of rights" (Gilbert, 1995:1248) the issue of refugees enjoying the same rights as nationals of host countries has always been a controversial discussion. This article seeks to answer the question "should refugees be guaranteed the same rights as citizens of their host countries?" 

For years, critics suggest that refugee law as it exists today is "fundamentally concerned with the protection of powerful states" (Hathaway, 1991:114) because it legitimises the protectionist norm by giving state right to exclude, admit and discriminate options in terms of guaranteeing fundamental rights. This some argue makes refugee laws often suggested as right-based largely illusory as such laws play remedial or palliative function rather than guaranteeing indiscriminately the rights of citizens and involuntary migrants (Hathaway, 1991).

Supported by the UNHCR, a body which seeks to ensure that refugees are treated in accordance with international standards and enjoy equal rights by being human,  the Refugee Convention defines refugee as "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 unwilling to avail himself of the protection of that country" (Gilbert, 1995:1219).

In other words, a refugee is a person who, not having the nationality of his host country and being outside the country of his formal habitual residence for fear of persecution is unable or unwilling to return to it. This definition which was largely in response to European refugee flows within the context of the Cold War (Loescher, 1999) critics may argue, explains the denial of same rights to refugees of host countries particularly, non-European involuntary migrants as the concept of refugee often suggested is Eurocentric and Western oriented (Steinbock, 1999). The argument is manifested by the greater resistant in the West to a UNHCR's pragmatic expansive definition of refugee to enable the acceptance of refugees and the enjoyment of universal rights by all refugees in host countries irrespective of one's ethnic origin (Loescher, 1999). 

From a humanitarian point of view, I couldn’t agree more with Carens (1987:252) who asserts, that all individuals have "an equal moral worth" thus we all have the same natural rights although the exercise of these rights is greatly affected by the material inequalities among states. Nonetheless, citizenship should have no distinctive claims and that refugees should enjoy the same rights and protection the state provides to indigenous people. This is because the state enjoys "a de facto monopoly over the enforcement of rights within its territory" (Carens, 1987:253) and therefore owe it as a duty to all in ensuring equal enjoyment of such rights. This effectively suggests that nothingJustifies the use of inhumane treatment by a country to peaceful people seeking an opportunity to build a descent and secure lives for themselves and their families. This does not suggest that states cannot make a clear distinction between economic migrants seeking “greener pastures” and genuine refuges fleeing for example, conflict, persecution from inhumane treatment when deciding to accord refugee help. This however, presents the potential for such distinctions to be used as a “fig leave” to be overly selective in deciding who a refugee is which states must guard against

Besides, the International Refugee law ratified by most host countries provides a set of standards against which refugees should be treated and places the obligation on nations which have acceded to these international instruments to meet their obligations. Therefore, for some states to tweak such obligations to lend themselves to a variety of interpretation which give government considerable scope to perceive their obligations in ways that suit their national interest is beyond reproach (Loescher, 1999).

Undeniably, it is an affirmed principle according to the UN Charter and the United Nations Declaration of Human Rights (UNDHR) that all human beings shall enjoy fundamental rights and freedoms without discrimination (General Provisions, 1951). Such rights are deemed inalienable and should not be deprived. In particular, while Article 2 of the UN Convention on Refugees General Obligations demands that a refugee conforms to the laws and regulations of host country as well as measures taken for the maintenance of public order, host countries in reciprocation should also be able to guarantee refugees rights without discrimination as stated in Article 3 of the same Convention.

In other words, host states should be able to accord refugees treatment at least as favourable as accorded their nationals. For example, Freedom of movement stated in Article 26 of the UN Convention on Refugees demands contracting parties to accord refugees lawfully in their territories the right to choose their place of residence and to move freely within their territories subject to any regulations generally applicable in whatever circumstances (General Provisions, 1951). Nothing in this protocol suggests refugees be kept in restrictive detention centres and border conglomerations for extended periods and be subject to inhumane and degrading treatments when nationals of such states can only imagine such situations.

The liberty of a person is among the most precious of human rights intimately expressed more than seven hundred years ago by the Magna Carter of 1215 which proclaimed that "no free man shall be taken or imprisoned ... Or be outlawed, or exiled or any otherwise destroyed; nor will pass upon him, nor condemn him but by the lawful judgement of his, or by the laws of the land" (Goodwin-Gill, 1986:195). What this means is that no person shall be deprived of their liberty without the due process of the law and such act is arbitrary and an infringement of personal liberty.

Besides, measures of detention have "an obvious role in the prevention and suppression of crime" (Goodwin-Gill, 1986:196) and therefore for a refugee to be detained for protection obfuscate the principal objective of detention. This also oversteps the margin of appreciation of state power to detain particularly when such detentions serve no purpose of preventing crime but to violate refugees’ right to liberty.

Equally, Article 2(1) of the Covenant on Civil and Political Rights also obligate states to respect and ensure the rights of all "individuals within its territory and subject to its jurisdiction without discrimination" (Goodwin-Gill, 1986:198). Although international law allows derogation under special emergency powers for states to deal with situations relating to national security and public order (Steinbock, 1999), such exercise of states emergency powers the laws requires, must also be consistent with international law. It therefore does not in any way justify the notion that refugees are entitled to a lesser standard of procedural rights than nationals of their host country. Put differently, any state conduct based on a distinction made on grounds of natural or social categories in the enjoyment of rights which have no relation to either individual capabilities or merit fall short of states obligation in Article 2(1) of the convention (Steinbock, 1999).

Arguably, developed countries cannot be directly blamed for most conflicts in less developed countries which have given rise to the unimaginable refugee influx into the West. The evidence nonetheless confirms that the macro-economic reforms imposed by international creditors in the West played a crucial role in fostering the collapse of state institutions in these third world countries creating situations of social and political divisiveness and ultimately the forced displacement of people (Chimni, 1998).

There is therefore no philosophical justification for states, particularly the developed global North to employ different standards for the treatment of refugees from countries in the global south. And where such disparate treatment exists, Chimni (1998:362) is perhaps right to suggest that, there should be the need to take the idea of "global distribution of justice" on the basis of the argument above seriously. In the absence of the above, I will, agree with Lucas’s (2013:1) criticism of developed European nations to stop shedding "crocodile tears" when mass death of refugees attempting unsuccessfully to enter Europe occur and guarantee them rights which will enhance their livelihood by dismantling the walls that "promote institutional xenophobia"

The narrow definition of refugee some argue has resulted in the limited access of refugees to the same social services as nationals of host nations (Hathaway, 1991). This because the most widely acceptable refugee definition provided by the UNHCR does not succinctly guarantees an extensive array of basic entitlements. The closest the 1933 Refugee Convention came to, was to insist that refugees be granted absolutely access to host countries welfare care and relief system including medical care and workers compensation but left the interpretation of “absolutely” to host nations to decide (Hathaway, 2005).

 Nonetheless, although the rights of refugees may not always be coextensive with the rights of nationals based on this definition, the Refugee Convention ratified by many states creates in refugees lawfully in a country a "privilege of nationals” Gilbert (1995:1220). This entitles and guarantees refugees the same rights in many key areas like the rights to public relief, elementary education, participation in rationing systems and rights under labour and social security including maternity, sickness and disability.

Besides, a textual, historical and contextual analysis of the refugee definition interestingly proposes a protection against serious harm inflicted for reasons of personal status and represents an integral part of a movement towards equality and away from status and disparities in relation to the enjoyment of rights Steinbock (1999). Moreover, all these rights are also enshrined and emphasised in various states-ratified International norms such as Conventions, Treaties, Covenants, Declarations and other legal instruments which hold states accountable for guaranteeing equal enjoyment of rights of refugees.

The Loophole

Nevertheless, in spite of all the arguments asserting refugees be guaranteed and enjoy the same rights as citizens of their countries,  one cannot deny that such principle mechanisms for ensuring refugees rights enshrined in whatever norms will continue to be marginalised because, most of these refugee conventions, treaties, declarations and instruments lack enforcement provisions and are not legally binding on states while the UNHCR which forms the basis of all other mechanisms guaranteeing refugees rights only plays largely an advisory role (Gilbert, 1995).

In particular, the refugee rights system largely been constructed on the basis of the concept of state responsibility and capability. As a result, certain leeway granted countries particularly developing countries will always compromises on the effective enjoyment of basic refugee rights. For example, Article 2(3) of the Economic Covenant explicitly limits the duties of developing countries with due regard to human rights, and their national economy may determine to what extent they would guarantee the economic rights recognised in the present Covenants to non-nationals (Gilbert, 1995).

Increasingly worrying is also the argument often cited by protectionists that opening one's border to an influx of refugees effectively reliefs the country of origin it's responsibility to take measures possible and necessary to ensure the safe return of refugees back into their territories therefore not granting them safe-haven by guaranteeing them same rights as nationals of host nations could expedite repatriation (Hathaway, 1991).

Equally, because there is no inter-state obligation which holds states accountable for the refugee inflow they produce to provide some form of compensation to states of asylum, there is no incentive for host states to fully guarantee the rights of refugees as their nationals (Hathaway, 1991). In other words, the reception of refugees is no more than an unpalatable prospect let alone guaranteeing them equitable rights as their nationals.

To conclude, it is about time to suggest that on refugee issues states should take a global not a national view of rights. For whatever refugee perception of rights we hold must be compatible with a respect for all human beings. Rights should be a standard against which all policies seeking to aid refugees be based on. For refugees to be accorded the same rights as citizens of host countries by virtue of being human, the perception of refugees being legitimate claimants of mutual aid and surplus wealth necessary to meet their needs must be discouraged (Hathaway, 1995). This is because "today's human rights abuses are tomorrow's refugee problem" (Loescher, 1999: 224).

Whatever the precise nature of the individual dimension, nothing justifies differentiating between nationals and non-nationals in the matter of fundamental human rights. Therefore, the detention, restriction of movement and liberty of refugees, exploitation of narrow refugee definition and over-shouldering other countries responsibilities are not and cannot be the appropriate solution to refugees’ plight. Instead, humanity as Goodwin-Gill (1986) suggests, should always exert a pervasive influence upon the content of laws which differentiate human beings on the basis of status.

This can only mean that society desist from turning morally-irrelevant differences like status into social disadvantages to accord one sect of society social superiority (Steinbock, 1999).  States should own it as a duty to all human beings to guarantee them equal rights, consider rights as inalienable and reciprocate the gesture of refugees mandated to obey host nations’ laws without hesitations.

Brief: Prince Osei Akowuah is the Founder and Director of REACT Humanitarian Network, www.rhncharity.org a UK-based charitable organisation that helps make education accessible to disabled children in the vulnerable communities in Ghana and some parts of Africa. He is incredibly passionate about Refugee issues and currently aside managing REACT works part time with the British Red Cross as Refugee Support Caseworker within the Thame Valley area in the UK. He can be can reached by;

 

Email; rhnonline.org@gmail.com Tel. (+44) 7949915547

https://www.linkedin.com/company/react-humanitarian-network?  

https://twitter.com/PRINCEOSEIAKOW1

 

 

REFERENCES

 

Carens, H. Joseph (1987) Aliens And Citizens: The Case For Open Borders, The Review Of Politics, Vol.49, No.2, pp.251-273.

Chimni, S. Bhupinder (1998) The Geopolitics Of Refugees Studies: A View From The South, Journal Of Refugees Studies, Vol.11, No.4, pp.350-374.

UN General Provisions On The Convention Relating To The Status Of Refugee: Adopted on the 28 July 1951 By The United Nations Conference Of Plenipotentiaries On The Status Of Refugees And Stateless Persons Convened Under The General Assembly Resolution 429 (V) Of 14 December 1950. (Accessed: 19/04/14).

http://www.idpsrilanka.lk/Doc/International%20Human%20Rights%20Instruments/91.%20Convention%20relating%20to%20the%20status%20of%20Rufugees.pdf.

Gilbert, Lauren (1995) Rights, Refuge, Women And Reproductive Health, American University Law Review, Vol.44, pp.1213-252.

Goodwin-Gill, S. Guy (1986) International Law And The Detention Of Refugees And Asylum Seekers, International Migration Review, Vol.20, No.2, pp.193-219.

Hathaway, C. James (1991) Reconceiving Refugee Law As Human Rights Protection, Journal Of Refugee Studies, Vol.4, No.2, pp.113-131.

Hathaway, C. James (2005) The Rights Of Refugees Under International Law, Cambridge, Cambridge University Press.

Loescher, Gill (1999) Refugees: A Global Human Rights Crisis, Human Rights In Global Politics, Cambridge, Cambridge University Press.

Steinbock, J. Daniel: The Refugee Definition As Law; Issues of Interpretation. In Frances, Nicholson And Twomey Patrick (1999) Refugees Rights And Realities; Evolving International Concepts And Regimes, Cambridge, Cambridge University Press.

Lucas, de Javier (2013) Between Repression And Paternalism: European Asylum Policy After The Lampedusa Tragedy, Critical Legal Thinking [online], pp.1-7. (Accessed: 24/04/14).

Available from: http://criticallegalthinking.com/2013/12/14/repression-paternalism-european-asylum-immigration-policy-lampedusa/.

 

 

 

 

 

 


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