Author: Donia Joevion Fuller, Research Associate
Prior to World War II, the dominant thought in relation to the rights of humans vis-a-vis international law and the state was that humans were objects rather than subjects of international law. This was primarily because international law as then understood concerned the rights and duties of states in their relationship with other states. Therefore, subject to very few exceptions questions of human rights were to be directed squarely at one’s state to the exclusion of all others1. However, sharp focus on the law of human rights turned with the advent of World War II, which arguably propelled the drafting of the Universal Declaration of Human Rights (UDHR), often called the Universal Bill of Rights. This article traces the development of international human rights law to its current state and seeks to show that in the particular area of refugee protection, the law needs further development in order to recognize a right to receive asylum.
A History of the Development of Human Rights
As previously stated the development of international human rights as an area of law is relatively young in comparison to other well-established areas of law. Whilst the nexus between international law and states always existed, only in very few instances was the right of the individual in the international sphere recognized. The chief example was the doctrine of human intervention. As expounded by early legal scholars such as Hugo Grotius, this permitted the use of force my one or more states where it was mistreating its own nationals. This, not surprisingly was abused by more powerful states to invade smaller ones. This doctrine now is no longer a feature of international law in general which recognizes not only state sovereignty but also the prohibition against use of force in defined circumstances under the UN Charter2. It is for this reasons that even today scholars continue to question the legality of NATO Military action in Kosovo, some have even argued that the doctrine persists as evidenced by regional instruments such as the Constructive Act of the African Union. However the special context in which this instrument was passed must be taken into account and one must not lose sight of the fact that one regional instrument does not give rise to the automatic existence of both state practice and opinio juris required for any claim of the existence of a principle of customary international law.
World War I, but more so World War II plunged the world in combat that has yet to be repeated. However, it was not until the latter that the need for international action in protection of human rights was recognized. Indeed whilst the Stalin’s Great Purge in Russia is often left for banal discussions in a history lesson, more emotive responses are elicited when the words Nazi, Hitler and Germany as stringed together. Out of WWII came the legally significant breakthrough events for human rights. These included the Nuremberg trials (establishing that genocide was a war crime) and the Genocide Convention of 1948 (establishing genocide as a crime under international law irrespective of whether it was executed war conditions or in time of peace. These events pierced the revered veil of state sovereignty and states were no longer free to deal with nationals, and by extension persons in said state in any manner deemed fitting3.
Also of relevance, was the drafting of the UDHR which may be said to have force of law through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). Of further significance in the development of international human rights was the development of the sub-category of refugee law through the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The latter establishes an intimate connection between human rights law on a whole and refugee law. Article 33 of the latter convention speaks to the right of non-refoulment that is, a prohibition on the receiving state from returning the refugee to where he may face persecution. This is of course in recognition of the general rule of international law that prohibits torture.
In recent times, Australia has come under the international spotlight for its recent policy on the issue of granting asylum. Under the new policy, all asylum seekers via boat to Australia will be sent to and warehoused in refugee-processing centres located in Papua New Guinea. Those whose have refugee status in keeping with the 1951 Refugee Convention will be allowed to resettle on Papua New Guinea, but will then forfeit any right to asylum in Australia. Not to be outdone is the Unites States of America in the ‘Snowden saga’. The latter claims that his right to asylum was violated when the US revoked his US Passport after he, in a video interview that took place in Hong Kong, leaked National Security Agency (NSA) documents to The Guardian and The Washington Post regarding top-secret government surveillance programs at a Hong Kong hotel June 9, 2013. Without a valid passport, he is effectively unable to receive asylum from another state. These events prompt questions on what exactly is the content of the right to asylum.
The right to seek or the right to receive asylum
The right of asylum in international law is dual in nature4and consists of the right of a state to grant asylum and the right of an individual to seek asylum- that is the asylum seeker’s right vis a vis his state of origin. Article 14(1) of the UDHR speaks to the right of an individual “to seek and enjoy in other countries asylum from persecution.” This provision merely affords the individual a right to seek asylum not receive it. To date, no international instrument or custom vests the individual with the right to be granted asylum, a right vis-a-vis the state of refuge.
In preparing the ICCPR states had an opportunity to provide for the right to asylum but declined to do so. The principal instruments concerning the protection of refugees, the 1951 Convention and 1967 Protocol also echoes the sentiment expressed. That there is no right to be granted asylum vis-a-vis the receiving state is evident, the UNHRC explains in the Refugee Handbook stated that, “the granting of asylum is not dealt with in the 1951 Convention or the 1967 Protocol.” Moreover, neither instrument prohibits imposing a moratorium on considerations of asylum applications.
Similarly, regional instruments do not provide for an individual’s right to asylum. American and African instruments address refugee protection but in a manner that demonstrates clear deference to states’ sovereignty. The OAU Convention provides in Article II(1), American Declaration and American Convention on human rights all provide for the right to asylum to be exercised in a manner consistent with legislation of the state and international conventions. State practice on the right to asylum does not support a contention that it is done out of a legal obligation but rather a humanitarian concern for those in need of asylum.
In view of the foregoing, it is clear that refugee crisis worldwide poses a challenge to the development of international human rights law. The language of the UDHR and other international instruments on the question of refugee protection and the grant of asylum clearly shows that whilst an individual may be a refugee within the definition of Article 1A of the Refugee Convention, whether or not they will be received into a state is within the sole purview of the laws of the state. In effect each convention gives the individual the right to seeks asylum, but is silent on whose duty it is to give effect to that right5. The time is perhaps ripe for States to convene themselves to resolve this question.
- Thomas Buergenthal et. al., International Human Rights in a Nutshell, in INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL(4th ed., 2009). [↩]
- see Art 2(4) and 51 UN Charter [↩]
- Anthony D’Amato Human Rights as Part of Customary International Law: A Pleas for Change of Paradigms [↩]
- Roman Boed, The State of the Right to Asylum in International Law, 5 Duke Journal of Comparative & International Law 1-34 (1994). [↩]
- Hersch Lauterpacht, The Universal Declaration of Human Rights, 1948 BRIT Y.B. INT’L L 354, at 373 [↩]