Zunaira Ali

Human Rights_ A Research on Human Rights Law

Evolution of Human Rights Law while highlighting the role of the Human Rights Commission. Additionally, how refugees have been protected and assigned a special status under Human Rights Law.

The amalgamation of ideas on human rights took place in comparatively recent times, but the notion of it is as entrenched as the history of human civilization. Due to the atrocities of WW2 the global community was obliged to develop such international instruments which commence defending the sanctity of human life and their rights as well.

Eventually, they sprang up with a consensus to establish such a forum which addresses the glitches of human beings and it named as Universal Declaration of Human Rights (UDHR). This creates a standardization of rights for people across the globe without any discrimination. From there onwards it became clear that without certifying Human Rights the development of life is quite impossible.

Conception of human rights:

The idea of human rights is the most extensively conversed and debated in national and international politics. The bi-dimensional radicalization of human civilization of the same continuum is that if on one end, there are incidents of exploitation, mass killing and all genres of indignant doings towards human beings and humanity, then on the other, there are attempts to protect humankind their values, freedom, and ethically desired goals.

The term Human Rights has legally and unanimously recognized after the formation of the United Nations in 1945. It signifies all those rights which are inherent in our nature i.e. No one acquires it by any special quality of reputation and without which we cannot live in dignity as human beings. These basic rights which are entitled to all humans include the right to life, liberty, freedom of thought and expression, and equality before the law. These are vital for individuals to advance their personality, their attributes, acumen, aptitude, and conscience for their self-development. It is a multidimensional concept which prolonged its expression and repetitively covers novel areas.

The foremost usage of the term is done by a French, Thomas Paine, who translate the French Declaration of Rights of Man from French to English. Some other epistemic communities embrace Hobbes, Locke and Rousseau who provided the required spark for the individual liberty movements.

They elaborated this fact by stating the ‘state of nature’ that before humankind certain rights were steeped into the very society of ours which then transcends into the realm of constitutional realism with a revolutionary document i.e., the American Declaration of Independence 1776. Key principles that encompass human right is:

The universality of Human Rights meant that they are irrespective of race, sex, regional or political or national affiliations.
Protection, Promotion, and Enforcement of Human Rights by international law.
Non-exchangeability of human rights as they are excessive to all, which is why they could not be taken away, nor could be stolen.
Equality in the deliverance of human rights so that each one would be able to enjoy the perks of it.

Human Rights transform in every generation due to the shift of focus. The Enlightenment era is comprised of ‘civil and political rights’ and stems primarily from the 17th-18th century. It is more oriented towards ‘liberty’ as they demand a limited government.

Socialist tradition is premised on ‘security’, inculcating economic, social, and cultural rights. Solidarity rights by the third world primarily emerged to handle contemporary issues such as, ‘environmental, cultural, and developmental rights.

Historicity of Human rights and the role of human right commission:

At first, there are no human rights but Cyrus the Great after conquering Babylon decided to free all the slaves and said that people have the freedom to choose their religion. His words are documented on a clay tablet known as Cyrus Cylinder and after that human rights were born. The notion spread quickly to Greece, India and ultimately to Rome. There they notice that people naturally followed certain laws even if they were not told to; they called this natural law. But these laws kept getting trampled by those in power.

This is not until the Magna Carta in 1215 came where the king finally came to agree that no one can overrule the rights of people not even a king. It is the most noteworthy step in the path to guard humanity against oppression. Onwards, people’s rights were finally recognized in 1628 by the Petition of Rights and they were now safe from those infringing in power. After that, the Bill of Rights was passed by Parliament in 1689, which held Parliament as the joint sovereign. And, in American Declaration which was followed by the French Revolution listed more rights and insisted that these rights weren’t just made up but rather, they are natural.

United Nations Commission of Human Rights (UNCHR) is established in 1946 by United Nation Social and economic council under the terms of the United Nation Charter to which all member states are signatories. Their members when first met create a drafting committee for the Universal Declaration of Human Rights, a non-binding document, which was adopted UN in 1948 during the presidency of Roosevelt.

This commission went through distinctive phases, like from 1947 to onwards 1967 they help countries to elaborate the treaties but they are not able to condemn any states who violate them as it was a period in which sovereignty is the strict principle; from 1967 onwards commission transcends to interventionist policies due to the massive violation in Africa and Asia due to colonization. After that, the commission took a new turn in 1970 and in 1980, in the earlier one it generates regional groups for the investigation of the violations and atrocities and in the latter it creates groups based on the particularization of abuses. These measures do not hold effective due to the politicization within the commission and the violations by the states.

Historical evolution of refugees and their special status:

The utmost nature of skirmishes engenders large sums of refugees, and due to their widespread allocation in various countries, it became a global issue. In contemporary times, their protection became a major concern for international organizations and agencies.

Hence, for the fortification of refugees, International Refugee Law came into being under the international legal framework. The facet to be remembered is that it solely is not able to form a solution for the refugees or the challenges faced by the migratory influx, rather it is a guiding principle for the effective measure to deal with refugee crisis. Its importance can be claimed, for instance, in the 1951 Geneva convention signed by all the states to diminish these problems.

The noteworthy notion of IRL is that how the idea to protect refugees’ undertones. The answer to this very question is that after WW1, an international solidarity emerges that how to deal with mass movements, which are primarily associated with Russian revolution and the collapse of ottoman empire. For this delinquent situation, an office of the High Commissioner for Russian refugees has been made, to which Dr Nansen was elected.

He conducted a task to define the legal status of refugees, to administer their allocation to those countries who want to become a receiving end and to commence relief work with assistance of philanthropic institutions. His decree was later transcended towards other groups of refugees i.e., Armenians and Assyrian or Turkish. After him, some benchmark events took place.

First, an International Nansen Office for Refugees was created as an autonomous body. Second, a high Commissioner for Refugees impending from Germany was appointed. Onwards, United Nations Relief and Rehabilitation Administration (UNRRA) was established by the allies due to the traumas of WW2 which replaced millions of people; thus, the chief purpose of this is to help those people in returning to their pace of origin.

After that, an intergovernmental committee on refugees was crystallized, which follows the queries of involuntary emigration from Germany and Austria; this committee was replaced by the International Refugee Organization (IRO). It happens because the refugee problems were in a priority list on the agenda made by UN General Assembly; they address that not a single individual should be compelled to return to their place of origin and their future must be guaranteed by an international body, but they are encouraged to return to their place of origin. IRO dealt with challenges like registration, determination of status, repatriation, and resettlement of refugees, but it continued its activities until 1951.

This is the case due to the heightened tension of East-West, as most of the countries claim that repatriation is an ideal solution and resettlement require manpower to such subversive groups. But due to its expensive nature, many nations are unable to do so that is why UNHCR by UN General Assembly is created in 1950.

United Nations High Commission for Refugees:

Its office was set up for three years and its mandate was renewed for the 5-year time period until 2003. The primary errands of UNHCR are:

To promote the conclusion and ratification of international conventions with the supervision of their applications or propose amendments as well.
Aid government to seek a perpetual resolution to the refugee problem.

The Convention smears on refugees and defines them as the refugees are ones who are in fear of being persecuted for the reasons of race, religion, nationality, membership of a particular social group or political opinion and in that they are unable to protect themselves.

The convention of 1951 is ratified by 144 states; whose provisions were become a part of Customary International Law in which the binding principle is nonrefoulement. The word ‘persecution’ is an essential part of the definition of ‘refugee’, although the word itself is not defined in the Convention. Articles 31 and 33 of the Convention speak about those whose life or freedom ‘was’ or ‘would be’ threatened i.e., the threat of death, torture, degrading treatment, or punishment.

The etymology of Articles 31 and 33 evidently elaborate ‘threat’ both in past and future forms which is intrinsic to the meaning of persecution and this can be viewed as a substantial advancement in the field of human rights law.

In addition to the 1951 Convention, there is a 1967 Protocol Linking to the Status of Refugees. Only some states are parties to the Protocol, including the US, Venezuela, Swaziland, and Cape Verde. Whereas others are signatories only to the Convention, and most states are parties both to the Convention and the Protocol. There are limitations between the 1951 Convention and the 1967 Protocol i.e., the earlier status of refugees is restricted to those whose circumstances had come before 1 January 1951 in Europe, while, the 1967 Protocol aloof both the temporal and geographical restrictions with respect to refugees.

Moreover, the five categories of persecution also limit the 1951 convention as it isn’t referring to social, economic, and cultural rights. UNHCR commences its functionality under the 1951 Convention and 1967 Protocol. Members are obligated to cooperate with UNHCR for carrying out its functions. The Cooperation with UNHCR is derivative primarily from two sources i.e., under the 1951 Convention and the 1967 Protocol and the compulsion to collaborate under the UN Charter.

In the former case, obligations require cooperation with UNHCR in the succour of its functions, while in the latter, the cooperation agreement turns into a joint venture of assistance between UNHCR and the host state, where both are required to extend protection to refugees jointly. The rationale behind these joint venture contracts is to encompass the mandate of UNHCR and IRL to refugees, who are otherwise outside the scope of the conventional law.

Cartagena Declaration on Refugees:

The evolution in refugee definition in Cartagena Declaration on Refugees, 1984. In which the member states met in Cartagena, Colombia, to discuss the pressing problems created by the massive influxes of asylum seekers within the Central American region, who are mainly coming due to the dictatorial regimes. It covers the indirect aspects of poverty, economic decline, inflation, violence, disease, food insecurity, malnourishment, and displacement.

Political instability in Africa and Central America had parallel consequences and lead to a broadening of the previously accepted definitions of refugees. Political and military cataclysms bent massive population shifts, as large numbers of people were displaced internally or sought refuge in neighbouring states. These changes led affected African States to agree on binding legal rules concerning refugees, adopted in the Organization of African Unity Convention.

In Central America, analogous vicissitudes led to the Cartagena Declaration, which widened the scope of refugee definition but, unlike its African counterpart, did not legally bind signatory States.

Conclusion:

Conclusively the applicability of the Human right Commission is in question and is being criticized for the composition of its members. Like their activist groups who no longer expressed concern over the members like China, Israel, and Saudi Arabia. They were showing biases against these countries which is quite an absurd phenomenon. The politicization in the Human right Commission based on power, prestige and wealth causes the undermining of the rights of those communities who are continuously being targeted and alienated.

Conclusively the eminent refugee problems are persistent realities and the efforts to cope with such circumstances have been progressively formalized. But this formulation did not come into effect if the nation-state's jealousy guards their effectiveness. Besides this, the resources accessible for addressing refugee situations dictate the nature of the responses. Nowadays, the international system is dependent upon government funds to address refugee situations. In prior years, funds principally came from the private sector and the role of international organizations was to coordinate their use for material assistance and particularly for the relief and care and maintenance phases of refugee responses.

There does not exist a shared perception within the international refugee system of the responsibilities of receiving governments towards refugees and those in refugee-like situations. Often, nation-states permit the entry of large groups of refugees on the assumption that durable solutions will be found and that the refugees will remain only temporarily. Southeast Asia, which considers resettlement as the more likely solution, is the exception. Yet, whatever the preferred solution, all too often the refugees and their host countries face long periods of care and maintenance during which repatriation is not possible and resettlement is not desired.

Zunaira Ali

Zunaira Ali

Human Rights_ A Research on Human Rights Law

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