Migration and Human Rights (7)

Citizens typically enjoy the best human rights protection of anyone in the territory of a country, relatively speaking. Even in badly governed states or dictatorships they are better off than immigrants, legal or illegal. And also in perfect democracies do citizens enjoy more rights than legal immigrants: the former have political rights, the latter do not. See this post for more information about this difference.

However, in a perfect democracy, legal immigrants and citizens enjoy the same level of protection with regard to all other types of rights, non-political rights such as freedom rights. This is called the principle of constitutional universality.

Illegal immigrants of course have a much harder time, even in perfect democracies. As they live in the “dark” they will find it difficult to come forward to complain about rights violations or to go to the police or the judge. Doing so will reveal their illegal status and will result in forcible return to their country of origin.

Asylum seekers or refugees have an even harder time because they are usually imprisoned for the duration of their asylum application. And as they are imprisoned, they usually find it difficult to escape into illegality when their application is denied. Compared to normal illegal immigrants, the government knows where they are – in prison – and hence can easily return them to their own country.

The worst off are the modern slaves. Many of them end up in slavery as a consequence of migration and trafficking, but not all. Many modern slaves are normal citizens.

Since citizens generally enjoy the best rights protection, it is a good strategy for non-citizens to try to become citizens. Traditionally, only legal immigrants can apply for citizenship (when some conditions are fulfilled). Asylum seekers, when their application is accepted, become legal immigrants and then they can, in the next step, try to apply for citizenship. If their asylum application is rejected, they are either send back or disappear into illegality. Together with other illegal immigrants, they first have to become legal immigrants (for example through some kind of amnesty measure) before they can hope to apply for citizenship.

Migration and Human Rights (4): Asylum

Asylum is a form of protection that allows individuals to remain in a country, provided that they meet the definition of a refugee. Eventually, they may become permanent residents or even nationals.

People seeking asylum in another country do so because they have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. They usually petition for asylum when they enter a country, and the government of the country decides on a case-to-case basis, according to its own rules, whether or not to grant asylum to a particular person. A person has to fulfill certain conditions before being granted asylum. These conditions differ widely from one country to another. Some countries have a very restrictive policy.

When asylum is denied, states usually deport the asylum seekers, back to their own country or to a third country. During the period leading up to the decision whether or not to grant asylum, states often detain the asylum seekers (and their families and children) in special prisons. Nevertheless, many failed applicants manage to remain illegally in the country. However, whether deported or gone underground, failed asylum seekers often lead miserable lives. And then we forget all those that didn’t make it to the country of application. Asylum seekers often undertake hazardous and fatal journeys.

People have a right to asylum (see article 14 of the Universal Declaration). It’s a very old legal notion (e.g. the medieval church sanctuaries). The grounds for asylum are however, rather limited. There should be some kind of persecution. An important question is whether economic refugees should be given asylum. I think they should. Poverty is just as much a violation of human rights as forcing someone to change his or her religion.

However, unrestricted economic asylum does not seem to be possible. Flooding rich countries with millions of economic refugees will not help anybody. It will destroy economic welfare in the few places where it exists, without offering any real improvement for the disadvantaged.

The same is true for other kinds of refugees. In principle people should be protected, whatever their origin. But of course, a state is no longer obliged to grant asylum if the applicants are so numerous that accepting all of them would lead to chaos and economic problems in the receiving country. Accepting them anyway would mean sacrificing the rights of the people of the receiving country without being able to do much in favor of the rights of the refugees.

Combating human rights violations in the country of origin is the best way to solve refugee problems. Most people do not want to flee, so accepting them as refugees is not the best solution from their point of view, even though it is still better than not accepting them and it makes it possible to protect their rights.

What Are Human Rights? (15): Constitutionally Universal

The theme of this post is the often difficult relationship between citizenship and human rights. This relationship is difficult because human rights, which are explicitly rights for all people everywhere, without distinctions of any kind, seem to require citizenship, and hence a distinction between groups of somehow differentiated people, for their protection. Without citizenship, it is argued, human rights remain a wish rather than a reality, potential rather than effective. Indeed, we often see that non-citizens such as refugees, asylum-seekers or stateless people suffer more rights violations than the citizens of the countries in which they happen to find themselves, even if these countries are comparatively well functioning democracies.

I want to argue that there are no legal reasons to consider citizenship as some kind of necessary condition for the protection of the rights of people within the territory of a state. Or, to put it negatively, that there are no legal reasons to treat the rights of non-citizens with less respect than the rights of citizens, or to accept violations of the rights of non-citizens with more ease than violations of the rights of citizens. There has to be, in other words, equality of protection between citizens and non-citizens. Citizenship therefore should be irrelevant for the protection of the human rights of the people within a given state territory. The state should be blind in this respect and treat non-citizens as if they were citizens. Non-citizens should have the same legal, judicial and other means to stand up for their rights.

The legal argument is based on Article 2, paragraph 1 of The International Covenant on Civil and Political Rights, which states the following:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

The widely held but mistaken belief that the rights of non-citizens residing in a state are, perhaps inevitably, more precarious than the rights of the citizens living beside them, goes back to the historically important role of citizenship in the practice of protecting human rights. Theoretically, citizenship is irrelevant to human rights. These rights are the equal rights of all human beings, equally and unconditionally. It is not justified to say that one should be white, male, citizen or whatever to be able to enjoy the protection of these rights. Universality, equality and unconditionality are perhaps the main characteristics of human rights. That is where they got their name. They would not be called human rights if this were not the case.

Although theoretically these rights come with no conditions attached, in reality and in practice there are many necessary conditions for their effective protection: a well functioning judiciary, a separation of powers, a certain mentality, certain economic conditions etc. Too many to name them all, unfortunately. But the one we should name and explain is citizenship. Historically, it was because people were citizens of a state that they could use and improve the institutions and judicial instruments of the state, including the executive powers, to enforce their rights. It is this historical contingency, the fact that people have always found their citizenship very useful for their human rights, which has led many to believe that there is some kind of special link between citizenship and human rights which makes it possible and acceptable to treat the rights of non-citizens with less respect. That rights are only accessible to citizens. That the rights of man have often been the “rights of an Englishman” in the words of Burke.

“The survivors of the extermination camps, the inmates of concentration and internment camps, and even the comparatively happy stateless people could see … that the abstract nakedness of being nothing but human was their greatest danger” (Hannah Arendt, The Origins of Totalitarianism).

The state, although it does not grant rights, has to recognize them and make them real, but not only for citizens. The constitution, the main instrument for recognizing human rights, should and nowadays often does explicitly guarantee rights for humans, and not merely rights for citizens. Everybody within the territory of the state, not only the citizens of the state, can then enjoy the human rights protected by the constitution. Citizens as well as non-citizens can then go to court and challenge unjust laws or acts of state. Both categories of people have legal personality. This is often called the constitutional universality of rights.

The protection of the economic rights of non-citizens is an even more contentious matter. Should non-citizens have the same healthcare protection, social security, education etc.? In principle yes, but some countries may have such a large number of non-citizens in their territory that the economic viability of their social security system comes under threat. The tax payers ability to fund the system is limited, and non-citizens normally don’t pay taxes.

Migration and Human Rights (3): Refugees

A refugee is an involuntary migrant or a “push-migrant”. It’s the situation in the home country – usually war, famine or persecution or a combination – which forces or pushes him or her to migrate abroad, usually to one of the neighboring countries. The refugee is different from other types of migrants, such as the people who feel the “pull” of economic opportunity which, voluntarily or involuntarily (in the case of extreme poverty), drives them abroad.

Refugees who flee war, famine or oppression but do not leave their home country are called internally displaced persons.

Countries have an obligation to accept refugee on their territory. Article 14 of the Universal Declaration on Human Rights states that

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

However, this obligation is often rejected by countries. Countries often subject

“refugees to arbitrary arrest, detention, denial of social and economic rights and closed borders. In the worst cases, the most fundamental principle of refugee protection, non-refoulement, is violated, and refugees are forcibly returned to countries where they face persecution.” Human Rights Watch (http://hrw.org/doc/?t=refugees&document_limit=0,2)

The states that create the refugee problem also have obligations. Article 13 of the Universal Declaration on Human Rights states that

Everyone has the right to leave any country, including his own, and to return to his country.

Therefore, countries have an obligation to create or restore the circumstances which make it possible for people to return home. It’s up to these countries, with the assistance of the international community, to address the root causes that force people to flee.

 

 

Which Human Rights Do We Have?

Here’s a summary list of internationally recognized human rights:

1. Civil Rights or Freedom Rights

  • Equality of rights without discrimination
  • Life
  • Security and integrity of the person
  • Protection against slavery, torture and cruel or inhuman punishment (humane treatment when detained)
  • Protection against arbitrary arrest or detention (arrest or detention only on the basis of a law and with prompt notice of the charges)
  • A public, fair and prompt trial before an independent, impartial and competent judge
  • Presumption of innocence until proven guilty
  • Means necessary for your defense
  • Protection against compulsory confession
  • The right not to testify against yourself
  • “Ne bis in idem”, no two convictions or punishments for the same offense
  • Case reviewed by a higher tribunal
  • Protection against “ex post facto” laws, laws established after the deed
  • “Nullum crimen sine lege”, there is no offense without a law
  • Recognition as a person before the law
  • Equality before the law and equal protection by the law
  • Judicial protection of rights and access to legal remedies for rights violations (the right to apply to a court which offers redress for violations)
  • Protection of privacy, family, home and correspondence
  • Freedom of movement and residence
  • Asylum from persecution
  • The right not to be deprived of your nationality, the right to change your nationality
  • Protection against arbitrary expulsion of nationals and aliens
  • Leave and return to your country
  • The right to marry and beget a family of your choice
  • Protection of the family
  • The right to own property
  • Freedom of thought and religion
  • Freedom of expression (seeking, receiving and imparting information regardless of borders)
  • The absence of attacks on your honor and reputation
  • Freedom of assembly and association (including the right to leave an association)

2. Political Rights or Democratic Rights

  • Political participation, directly and through freely chosen representatives
  • Equal access to public service, the right to be elected
  • The will of the people is the basis of the authority of government
  • Periodic and genuine elections
  • Universal and equal suffrage
  • Secret vote

3. Social, Economic and Cultural Rights

  • Social security
  • A certain standard of living
  • Work, of your own choice and under favorable conditions
  • Protection for the unemployed, the elderly, the disabled and sick persons
  • Fair wages and equal wages for equal work
  • Free trade unions (right to form and join)
  • Strike
  • Rest and leisure
  • Food, clothing and housing
  • Health care
  • Special protection for children and mothers
  • Education
  • Participation in the cultural life of the community
  • Self-determination
  • International solidarity