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Refugees and international law

Human rights

Human rights

Human rights are the basic universal freedoms and entitlements inherent to all human beings. Every person has human rights, simply by virtue of being human, and all human beings are entitled to enjoy and exercise their human rights equally and without distinction.Human rights are inalienable, which means that a person cannot be deprived of their rights. Human rights can be violated, but this does not mean that they are “taken away”. Every human being has the same human rights – it is only the level of rights recognition that varies.Human rights complement and reinforce each other. For example, the right to privacy cannot be fully enjoyed unless the right to adequate housing is also protected; and protecting the rights to health and food helps to ensure that the right to life can also be enjoyed.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR)  is the foundation of international human rights law. Proclaimed by the United Nations General Assembly in 1948, it was the first internationally agreed statement of the fundamental human rights to which all human beings are entitled.The Declaration is not a legally binding treaty but rather an aspirational statement which aims to set “a common standard of achievement for all peoples and all nations.” However, the Declaration is an extremely influential document and is widely regarded as the standard by which we measure compliance with human rights principles.Article 14 of the Declaration states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

Core international human rights instruments

The Declaration has been developed through the International Covenant on Civil and Political Rights (ICCPR)  and the International Covenant on Economic, Social and Cultural Rights (ICESCR)  . These two Covenants, their protocols, and the Declaration are often collectively referred to as the International Bill of Rights .There are another seven core international human rights instruments  :

  •  International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
  •  Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  •  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
  • Convention on the Rights of the Child (CRC or CROC)
  • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
  • International Convention for the Protection of All Persons from Enforced Disappearance, and the
  • Convention on the Rights of Persons with Disabilities

Human rights and refugees

There are a number of human rights that are especially important for refugees in human rights law.

Torture, cruel or inhuman or degrading treatment

Three of the treaties provide that no one shall be subjected to torture, cruel or inhuman or degrading treatment (Article 7, ICCPR, Article 3, CAT, Article 37, CRC).Article 3 of CAT expressly prohibits a State from removing a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The obligations under the ICCPR  and t he CRC have been interpreted  in a similar way. These obligations extend the principle of [[non-refoulement]] expressed in Article 33 of the Refugee Convention.

Detention

Article 9 of the ICCPR provides for the right to liberty and security of person, and prohibits arbitrary detention. Article 37 of the CRC provides that children should only be detained as a measure of last resort. Article 10 of the ICCPR also provides that, if people are deprived of their liberty, they must be treated with humanity and dignity.

Children’s rights

As well as limiting the detention of children, the CRC also includes a range of rights which are important to child refugees  , including:

  • rights of children to protection, registration after birth, and the right to a nationality (Article 24, ICCPR, Article 7, CRC)
  • the obligation to make all decisions with regard to the best interests of the child (Article 3, CRC)
  • the obligation not to separate children from their families against their will and to promote family reunification (Articles 9-10, CRC)
  • the obligation to protect children from violence and abuse, including sexual abuse (Articles 19 and 34, CRC), and to assist in their recovery from violence and abuse (Article 39, CRC
  • special protection and assistance required for children seeking refugee status or recognised as a refugee, including assistance in reuniting with family (Article 22, CRC), and
  • rights of children to education (Article 28, CRC).

Justice

Among other rights, human rights law protects:

  • the right to due process for the expulsion of non-citizens lawfully in the country (Article 13, ICCPR), and
  • the right to equality before the law and equal protection of the law (Article 26, ICCPR).

Monitoring

Each of the nine core treaties is overseen by a committee of experts which monitors the implementation of the treaty  .States which are bound by those treaties must submit periodic reports to the committees detailing their progress in implementing the treaty. The committees also hear and assess individual complaints.Some of the treaties are supplemented with Optional Protocols which deal with specific human rights issues. For example, there is an Optional Protocol to the Convention against Torture  which provides for monitoring of places of detention. Some treaties also have Optional Protocols that allow individuals to complain to the monitoring committee if they feel their state has failed to uphold its obligations under the treaty.Australia is party to seven of the nine core international human rights instruments and the Optional Protocols on the ICCPR, CEDAW and CROC. Australia is not currently party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, or the International Convention for the Protection of All Persons from Enforced Disappearance. Australia is also not yet a party to the Optional Protocol on the Convention against Torture, which is monitored by a separate committee.

 

Committing to a human rights treaty

There are a number of steps in the process of committing to a human rights treaty  . First, a state will sign the treaty. This does not impose any legal obligations on a state. Rather, it indicates that the state agrees with the principles in the treaty and is willing to take steps towards being bound by it in the future.The next stage is ratification, when the state agrees to be legally bound by the terms of a treaty. They are then referred to as a “state party” to the treaty and have a legal obligation to respect and uphold its provisions.States can also agree to be bound by the terms of a treaty immediately, without having first signed it. This is called accession.States can also become parties to international treaties by succession. When one state replaces (or “succeeds”) another in the responsibility for the international relations of a territory, the new state can agree to be bound by any multilateral treaty which was ratified by the state it replaces. For example, following the breakup of Yugoslavia, which was a state party to the Refugee Convention, the former Yugoslav states all agreed to become parties to the Convention by succession.States can qualify or limit their obligations by making ‘reservations’ to parts of the treaty. States do not have a legal obligation to uphold provisions against which they have declared a reservation, even if they have ratified the treaty.States may also withdraw from a treaty (denunciation), but this is very rare.

Australia was one of the first countries to become a state party to the Refugee Convention, on 22 January 1954. Australia became a party to the 1967 Protocol on 13 December 1973.

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