History of the world is a long tragic tale of aggressions, wars,
class-community conflicts and violence. There had been in the past French
Revolution, Russian Revolution, American Revolution and India's long struggle
for Independence. Those who fought wars and took active part in revolutions also
undertook them to create order, peace and happiness. But Buddha's saying is, Violence
can be met only by non-violence and enmity by friendship.
In the present world situation, even a superpower harbours no ambition to rule
over another country by forming its own government but the desire is to
monopolise another country's trade, commerce and industry.
World over people's resistance and protest-many times leading to large-scale
violence-is with an urge for freedom which is the most cherished and valuable
human right. India's long freedom struggle was also to attain full human freedom
to all Indians. The people's unarmed struggle against dictators in Egypt and
Libya is an outburst of the innate desire of people of those countries to enjoy
human freedoms of all kinds.
Nexus Between Refugee Crisis And Human Rights
Human rights are those rights which an individual has a right to enjoy because
of his being a human being. It is one of the primary obligations of the States
and the international community to protect and make possible due enjoyment of
such rights. The issue gains more importance when the human rights of refugees
are in focus. They are most vulnerable to deprivation and persecution, more so,
because of lack of State protection.
The cognisance of refugee status must be taken both under the refugee law and
the human rights law, two inseparable composite lenses for that purpose. In
reality the aim is not only a mere institutionalisation of the exile, but also
respect for rights of the individuals. The obligation of the international
community is to grant protection and join hands with the country of refugees'
refuge and work for elimination of the causes of any exodus. The individual
well-being and fairness of the general masses must be looked into in an
integrated manner. Thus the refugee crisis cannot be addressed without a direct
consideration of human rights.
Refugees generally flee out of their homes because of threat to their lives or
fear of persecution. As regards the state responsibility in the matter, the
General Assembly Group of Experts (1986) recommended that in view of their
responsibility and their obligations under existing international instruments in
the field of human rights, States should:
- do all within their means to prevent new massive flows of refugees and
refrain from creating or contributing by their policies to causes and
factors which generally lead to refugee movements, and
- cooperate with one another in order to prevsnt such future flows. Findings
of the UNHCR experts in 1989 have made it explicitly clear that in broad terms,
the problem of refugees is basically that of the denial of freedom to the
individual by reason of conditions in the country of nationality which compel
them to depart from that country or to stay abroad.
They opined that the solution was either:
- prevention of conditions within the country of nationality which
compelled a national to depart; or
- remain outside the country of nationality without national protection or
remedying of the conditions having that effect. It was only in that
eventuality that the basic problem of denial of freedom of movement could be
The UN General Assembly has discussed the problem of refugees, inter alia, with
reference to the development of good neighbourliness between states which is
manifest from different agreements and arrangements at the global level and is
mainly, reflected in the Conclusions on Voluntary Repatriation
, adopted by the UNHCR Committee in 1985.
The High Commission in this way allows the taking of
initiatives in promoting voluntary repatriation; and actively pursues the
promotion of solutions to refugee problems. This necessitates a change in
approach at the political, diplomatic and assistance level, especially with
respect to human rights.
The need is to accept the sovereignty of human rights and realise that the
sovereignty of the nation states is not and cannot be absolute. The concept of
sovereignty has to undergo changes from time to time and more so when
internationalism has become inescapable and concern for human rights has
transcended all national borders. The fall of USSR and China's positive
responses to voices from outside are the most recent instances.
is very important from the point of view of refugee law and crisis.
International refugee law has accordingly incorporated doctrines through
universal and regional instruments to take care of the human rights of refugees
and of those whose rights if protected may not become refugees.
This fact leads to the conclusion that the refugee law is an inseparable part of
human rights law. The Universal Declaration of Human Rights also provides that
Everyone has the right to seek and to enjoy in other countries, asylum from
persecution. Persecution can be defined as a violation of basic human rights.
The 1951 Convention alongwith many other international and national instruments
spell out in detail the right to seek asylum from persecution and the definition
of a refugee under the Convention has a clear nexus with the basic concept of
Refugees' Human Rights Under Universal Instruments
Under the Universal Declaration of Human Rights 1948 every one has the right to:
- freedom of movement and residence within the borders of each state
- leave any country including his own and return to his country
- seek and to enjoy in other countries asylum from persecution,
- a nationality and not to be arbitrarily deprived of this nor to be
denied the right to change it.
Besides UDHR, all basic human rights are guaranteed to refugees under the 1951
Convention on the Status of Refugees. Before specifying the rights of the
refugees the Convention puts them under a duty to the country in which they find
themselves to conform to its laws and regulations as well as measures taken for
the maintenance of public order.
Under the Convention the contracting states are
under an obligation to honour all the basic rights of the refugees in a
prescribed manner. The Convention requires the application of its provisions to
refugees without discrimination on the basis of race, religion or country of
origin. The refugees are to be accorded a treatment, at least as favourable as
is accorded to the nationals. They are even given the freedom of religion and
right to impart religious education to children.
The Convention provides for the protection of refugees' rights not only under
its own provisions but also those available under any other law or policy. After
a period of three years residence all refugees are given exemption from
legislative reciprocity. Wherever exceptional measures are allowed against the
person, property or interests of the national of a foreign state, the Convention
restricts the application of such measures to refugees from that State, except
in those cases where national security so demands.
About refugee seamen the Convention provides that in the case of refugees
regularly serving as crew members on board a ship flying the flag of a
contracting State, that State shall give sympathetic consideration to their
establishment on its territory and the issue of travel documents to them or
their temporary admission to its territory particularly with a view to
facilitating their establishment in another country.
The Convention permits the determination of the personal status of a refugee by
the law of the country of his domicile or by the law of the country of his
residence (if he has no domicile) and recognizes the rights of acquisition of
the property, both movable and immovable, through different modes, at least
equivalent to the rights accorded to aliens in the same circumstances.
The Convention guarantees the same protection to the industrial and intellectual
property of refugees in the country of habitual residence as is accorded by that
country to its own nationals. Their rights regarding association with
non-political and non-profit-making associations and trade Unions, access to
courts, rationing facilities, education, recognition of degrees and
qualifications, public relief, fiscal charges, freedom of movement, will be the
same in a Contracting State as those of their own nationals or nationals of
their habitual residence or at least as enjoyed by aliens in the same
Same is the position with respect to the right to �wage-earning employment' and
�self-employment'. Restrictive measures imposed on aliens or the
employment-aliens for the protection of the national labour market shall not be
applicable to a refugee who was already exempt from them before the enforcement
of the Convention or who has completed three years' residence in the country or
has a spouse possessing the nationality of the country of residence or has one
or more children possessing such nationality.
Those refugees who are holding recognised degrees and who are desirous of
practising a liberal profession, are entitled to get from the Contracting State
a favourable treatment and the States shall use their best endeavours consistent
with their laws and Constitutions to secure the settlement of such refugees.
the matters of remuneration, hours of work, overtime arrangement, holidays with
pay, restrictions on homework, minimum age of employment, apprenticeship and
training, women's work and the work of young persons,. enjoyment of the benefits
of collective bargaining, compensation for death resulting from employment
injury or from occupational disease, the refugees are to be treated by a
Contracting State in the same manner as it treats its own nationals.
Almost equal benefits are enjoyable under the social security legislations. So
far as administrative measures are concerned the Contracting States are required
by the Convention to grant assistance to refugees in regard to their access to
foreign countries to whom they cannot have recourse for matters like delivery of
documents or certificates by their own authorities or by an international
authority for the service charges commensurate with those charged to nationals
for similar services.
A refugee who does not possess a valid travel document is
also to be issued identity papers and refugees who are lawfully staying in a
Contracting State, should be issued travel documents for the purpose of travel
outside their territory unless found to be improper under compelling reasons of
national security or public order.
Permitting refugees the transfer of assets to their places of settlement is also
a duty of the Contracting States. No penalties are to be imposed on refugees
entering a Contracting State illegally provided they present themselves, without
delay, to the authorities and show good cause for their illegal entry or
presence. They enjoy a right not to be expelled, but for the reasons of national
security or public order and in accordance with due process of law.
Convention contains clear provisions about the prohibition of expulsion or
return (refoulment) directing the Contracting States not to expel or return (refouler)
a refugee in any manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of race, religion, nationality,
membership of a particular social group or political opinion except for the one
who is a threat to its national security or has been convicted for a serious
crime and constitutes a danger to the community of that country. Nonetheless,
the contracting parties are required by the Convention, as far as possible, to
facilitate the assimilation and naturalization of the refugees.
Enforcement Of Human Rights By Refugees
The main agency to facilitate the enjoyment of human rights by refugees is the
UNHCR. The UN General Assembly decided to establish the High Commissioner's
Officer for Refugees (UNHCR) on 3 December 1949. The statute of the office was
adopted on 14 December 1950 and the office took its birth on 1 January 1951. The
statute declard the work of the high commissioner as purely humanitarian and
social and of an entirely non-political character.
The functions of the high commissioner are defined in the statute and in various
subsequently adopted resolutions of the General Assembly. He has to follow the
policy directives as given to him by the General Assembly or the Economic and
The statute authorises the Economic and Social Council, after ascertaining the
views of the high commissioner on the subject, to establish an advisory
committee on refugees comprising representatives of States, members and
non-members of the UN, selected on the basis of their demonstrated interest in
and devotion to the solution of the refugee problem. An Advisory Committee on
Refugees was established by the Economic and Social Council in 1951 which was
later reconstituted in 1955 as the �UN Refugee Fund (UNREF) Executive
Committee'. In 1958, the latter was replaced by the Executive Committee of the
High Commissioners Programme.
The committee approves and supervises the material
assistance program of the High Commissioner's Office and advises him at his
request on the exercise of his functions under the statute. Beginning with a
membership of 24 states in 1963 its membership has gradually increased to 134.
The Office of the United Nations High Commissioner for Refugees was first
established for a period of three years. It was extended by subsequent
resolutions for successive periods of five years, the present term ending on 31
The General Assembly resolution 428 (V) of 14 December 1950 further called upon
governments to cooperate with UNHCR in the performance of its functions
concerning refugees by:
- becoming parties to relevant international covenants and taking
necessary steps of implementation thereunder;
- entering into agreements with the high commissioner for the execution of
measures to improve the situation of refugees;
- admitting refugees to their territories and their assimilation;
- assisting the high commissioner in his efforts to promote the
repatriation of refugees;
- providing refugees with travel and other documents especially to
facilitate their resettlement;
- permitting them to transfer of assets; and
- providing the high commissioner with information concerning the number
and condition of refugees, and laws and regulations concerning them.
United States Statute And Treaty Obligations
In the wake of World War II, the United States helped lead efforts to draft the
Convention Relating to the Status of Refugees. The United States subsequently
became a party to the Refugee Protocol, committing to abide by the Refugee
Convention's requirements, including its prohibition on the expulsion or return
of refugees in any manner whatsoever to places where their lives or freedom
would be threatened. This rule of non-refoulement applies to rejecting or
turning away asylum seekers at a country's borders.
Congress created legal processes for arriving asylum seekers to request
protection and have their claims adjudicated in accordance with the Refugee
Protocol. Section 208(a) of the Immigration and Nationality Act (INA) confirms
that any individual who is physically present in the United States or who
arrives in the United States at a port of entry or otherwise may apply for
asylum, irrespective of the person's immigration status.
Since 2009, asylum
requests, particularly among Central Americans who are fleeing endemic violence,
have increased both in the United States as well as in neighboring countries of
the region. Under U.S. immigration law, asylum seekers who have been placed into
expedited removal proceedings by CBP cannot be summarily deported before having
an asylum officer conduct a screening.
When CBP invokes expedited removal and the individual indicates an intent to
apply for asylum or a fear of persecution, the CBP officer must, under U.S. law,
refer that asylum seeker for a credible fear interview with an asylum officer.
From December 2016 through March 2017, about 8,000 asylum seekers were referred
for protection screening interviews from U.S. ports of entry, including U.S.
Asylum seekers are held in U.S. detention facilities during these
screenings, and even those who pass this screening often remain in immigration
detention facilities for months. CBP's own field manual instructs officers to
refer an individual to an asylum officer for a credible fear interview upon
indication in any fashion or at any time during the inspections process, that
he or she has a fear of persecution, or that he or she suffered or may suffer
Alternatively, CBP officers may place asylum seekers into regular
immigration court proceedings before an immigration judge under section 240 of
the Immigration and Nationality Act, rather than invoking expedited removal.
The Trump administration has acknowledged U.S. legal obligations to asylum
seekers. President Trump's March 6, 2017 executive order, Protecting the Nation
From Foreign Terrorist Entry Into The United States
, states, Nothing in this
order shall be construed to limit the ability of an individual to seek asylum,
withholding of removal, or protection under the Convention Against Torture,
consistent with the laws of the United States
Similarly, CBP officials have confirmed that the United States continues to
recognize its obligation to process asylum seekers. In March 2017 a CBP
spokesperson told reporters:
CBP has not changed any policies affecting asylum
procedures. These procedures are based on international law and are focused on
protecting some of the world's most vulnerable and persecuted people.
gaps between the law and its implementation have long been documented. The
bipartisan USCIRF detailed in a series of reports issued since 2005, with the
most recent in 2016, a history of failure to properly implement the required
steps to identify and refer individuals who indicate an intent to apply for
asylum or a fear of harm.
U.S. Border Agents Are Turning Away Asylum Seekers Without Required Protection Screening
U.S. border agents have turned away asylum seekers, without referring them for
the required protection screening or immigration court proceedings, at official
ports of entry across the southern border.
In some cases, asylum seekers report
that CBP officers simply ignored their request to seek asylum or their
statements about fearing return, or said, for example:
We are deporting you
now. In other cases, CBP officers gave false information about U.S. laws and
procedures, mocked and intimidated asylum seekers, or accused them of lying.
Mexican asylum seekers in particular report that CBP agents discount their fear
claims and tell them Mexicans cannot get asylum in the United States.
accepting any political asylum applicants anymore
, agents told one wheelchairbound Mexican asylum seeker in January, despite visible scars on his
head from cartel attacks.
CBP told Magdalena, another Mexican asylum seeker at
the Ped-West port of entry in February, they are killing people who are
Christians. Those are the people we are giving asylum to, not people like you.
You don't qualify.
A mentally disabled Mexican asylum seeker and his lawyer were told we don't
give asylum here � we are not going to give asylum here. Martin, a Mexican
journalist whose persecution has been documented by Reporters without Borders
requested asylum at the El Paso port of entry and was told that Mexicans could
not receive asylum in the United States, according to his attorney who witnessed
the incident and was able to press CBP to process the protection request. Human
Rights First wrote to DHS in July 2016 and urged that requests for protection
be properly and humanely processed at [the San Ysidro] port of entry.
Yet the turn-backs continued and appeared to expand to multiple ports of entry
along the southern border. A January 2017 complaint filed with the DHS Office of
Civil Rights and Civil Liberties and the DHS Inspector General by the American
Immigration Council, among other groups, detailed examples of turn-backs at
multiple ports of entry in Texas, Arizona, and California between September and
December 2016. Since November 2016 reports of CBP officers turning back asylum
seekers have continued, with some officers reportedly invoking the change of
administration in their refusal to process asylum seekers, particularly in the
wake of the January 2017 executive orders relating to refugees and the border.
Human Rights First interviews with asylum seekers and their lawyers indicate
that there has been a marked shift in the conduct of some CBP officers towards
asylum seekers since the election of President Trump. CBP officers have
reportedly made a range of statements to the effect that the United States is no
longer granting asylum and that asylum seeker are no longer allowed to seek
protection at U.S. ports.
Lawyers reported to Human Rights First that CBP agents at the Hidalgo port told
asylum seekers, Trump says we don't have to let you
, and you can't just show up here. In February 2017 CBP agents at the Ped-West
entry point told an asylum seeker that the United States is not giving asylum
anymore. CBP agents told other asylum seekers they needed a visa to enter the
United States, or that the U.S. is not processing asylum for people from your
Mexican Authorities Are Complicit In Barriers To Asylum Seekers Approaching U.S. Ports Of Entry
Refugees who intend to request asylum at U.S. ports of entry along the southern
border face a barrage of barriers in Mexico. Some are prevented from approaching
U.S. officials by Mexican private security guards or Mexican immigration
enforcement agents, who say the United States is no longer giving asylum.
who do reach CBP officers at the ports in southern California are turned back to
Mexico and told they must first have an appointment from Mexican officials in
order to meet with CBP officers at the U.S. port of entry. In reality, Mexican
officials decline to issue appointments to many asylum seekers.
INM agents and Grupos Beta officials continue to prevent and discourage asylum
seekers from approaching U.S. ports of entry, according to multiple interviews
conducted by Human Rights First with shelters, non-profits, lawyers, and asylum
seekers on both sides of the border.
In some cases, Mexican officers told people
that the United States is no longer accepting asylum seekers. Human Rights First
researchers observed Grupos Beta, INM agents, and Mexican military when
approaching the border crossing points in Matamoros, Reynosa, and Tijuana. Local
lawyers report that Mexican authorities turned away asylum seekers in Reynosa,
Mexico who were attempting to approach the U.S. Hidalgo port of entry in January
Media reports indicate Mexican military agents blocked Cuban asylum
seekers from approaching the Laredo port in early April 2017. Several shelters
in Tijuana report that INM agents have informed Mexican asylum seekers that
Mexicans cannot get asylum in the United States, and that local Mexican police
officers have turned away Mexican asylum seekers who were attempting to approach
the Ped-West port.
Multiple reports also indicate that Grupos Beta is informing Mexican and Central
American asylum seekers that the United States is no longer giving people
asylum. According to local advocates in Mexico, Grupos Beta officials have told
them, stop lying to people, CBP told us they are not giving asylum in the United
Coercion And Hostility Aimed At Discouraging Asylum Seekers: Conclusion
Even in cases where asylum seekers manage to speak with CBP officers, some
encounter officers who press them to abandon their asylum requests, appear to
make personal, arbitrary decisions on who is eligible for asylum, or fill out
CBP interview forms with inaccurate, misleading, or false information.
This gauntlet of barriers to requesting asylum is so challenging that some
asylum seekers have turned to lawyers to help make sure the appropriate legal
processes are followed. Asylum seekers, and sometimes lawyers, have been berated
by CBP officers for urging them to process and properly refer protection
Consistent with U.S. law, as detailed above, CBP officers at ports of entry are
charged with referring individuals who express a fear of return or request
asylum to trained United States Citizenship and Immigration Services (USCIS)
asylum officers who make the legal determination of whether the asylum seeker
has a significant possibility of establishing eligibility for asylum.
Therefore the situation of Human Rights at USA-Mexico border is deplorable.
Award Winning Article Is Written By:
- Manu Gupta &
- Shivangi Pant
Authentication No: DE33787763147-2-1220