Migrants and refugees are routinely denied the protection of international human rights: what does the future hold?

Author:Nanda, Ved P.
 
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  1. INTRODUCTION

    In a globalized world, it is no surprise that human mobility is on the rise. The number of international migrants (1) increased from approximately 173 million in 2000 (2) to 214 million in 2010 (3) and stood at 244 million in 2015. (4) This includes over 65 million forcibly displaced persons and more than 21 million refugees. (5) In addition, although not a focus of this comment, 10 million stateless people (6) and 40 million internally displaced persons (7) also suffer varying deprivations of human rights.

    While more migrants and refugees are on the move, they increasingly suffer from serious violations of their basic human rights en route, at the borders, and in the countries of transit as well as destination countries. This article discusses the challenges migrants and refugees face as they seek protection and the several recent efforts to find solutions to their plight. In Part II, I review the nature, magnitude, and complexity of the current international movement of migrants and refugees. Part III discusses the challenges migrants face and recent efforts undertaken to protect their rights and find a more orderly, predictable, coordinated, and humane process to address these challenges, contrasted with the current unregulated and ad hoc approaches. Part IV presents the recent developments related to refugee admissions in the United States. Part V notes the applicable international law, including the international law of migrants and international refugee law. Part VI provides analysis, followed by conclusion in Part VII.

  2. NATURE, MAGNITUDE, AND COMPLEXITY OF THE MIGRATION CRISIS

    On September 19, 2016, the United Nations General Assembly aptly stated the reasons for voluntary movement and forced displacement:

    Some people move in search of new economic opportunities and horizons. Others move to escape armed conflict, poverty, food insecurity, persecution, terrorism, or human rights violations and abuses. Still others do so in response to the adverse effects of climate change ... or other environmental factors. Many move, indeed, for a combination of these reasons. (8) Among the major pull factors is that destination states need migrant labor.

    The number of displaced persons is indeed staggering and has grown dramatically, partially due to the continuing Syrian conflict, and also because of ethnic and religious tensions in several countries including Afghanistan, Eritrea, Iraq, Libya, and Somalia. More than a million refugees (those who flee across international borders because of war, violence, and persecution) and migrants crossed the Mediterranean in 2015, seeking safety, (9) and the number of those who applied for asylum in Europe between July 2015 and May 2016, also stood at more than one million. (10)

    The numbers of unaccompanied minors seeking asylum in Europe are on the rise, as well--198,500 entered Europe between 2008 and 2015, and 48 percent arrived in 2015 alone. (11) UNICEF has stated in a recent report, Hitting Rock Bottom: How 2016 Became the Worst Year for Syria's Children, that Syria's children have suffered the most during their country's civil war, for, as, in 2016 at least 652 children were killed, 850 were recruited and used in the conflict; more than 1.7 million inside Syria are out of school, and nearly six million were dependent on humanitarian assistance. (12) The number of Syrian children living as refugees in Turkey, Lebanon, Jordan, Egypt, and Iraq is over 2.3 million. (13) The report adds. "[s]ince the beginning of the conflict in 201 I, thousands of children crossed Syria's borders unaccompanied or separated from their families. The situation of more than 47,000 people stranded at the no man's land near Syria's southeastern border with Jordan continues to deteriorate." (14)

    The number of migrant arrivals to Europe by sea has slowed, due to the increased border restrictions on refugee and migrant movements toward and within Europe in 2016, and Turkey's decision to end the irregular migration from Turkey to the European Union, as set out in the EU-Turkey statement of March 16, 2016. (15) Nevertheless, during the first 73 days of 2017, 19,653 migrants, including refugees, still arrived in Europe. (16)

    The perilous journeys resulted in the deaths of 7,763 migrants worldwide in 2016, an increase of 27 percent compared to 2015 and 47 percent compared to 2014; 5,085 of them died in the Mediterranean Sea in 2016, an increase of 34 percent from 2015. (17) Despite increased search-and-rescue efforts, 788 migrants, including refugees, died during the first 71 days of 2017. (18)

    The recognition of the variety of reasons for the movement of people mentioned above was in a resolution the General Assembly adopted on September 19, 2016, entitled the New York Declaration for Refugees and Migrants (Declaration); (19) this was the outcome document of the High-Level Plenary Meeting on addressing large movements of refugees and migrants. The Heads of State and Government and High Representatives had assembled to address this topic. Earlier, in March 2016, a regional process in the Asia-Pacific Region, the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, had charted a comprehensive regional approach to managing migration flows and combating people smuggling and human trafficking. (20)

    A day following the UN Summit, President Barack Obama opened the Leaders' Summit on Refugees, (21) at which donors increased the financial contributions made earlier to the United Nations and other international humanitarian organizations by approximately S4.5 billion over the 2015 level. (22)

    As part of the Declaration, the Member States reaffirmed that they would "fully protect the human rights of all refugees and migrants, regardless of status; all are rights holders." (23) They added that their response would "demonstrate full respect for international law and international human rights law and, where applicable, international refugee law and international humanitarian law." (24)

    Among other commitments, the world leaders stated that they would recognize and ... address, in accordance with our obligations under international law, the special needs of all people in vulnerable situations who are traveling within large movements of refugees and migrants, including women at risk, children, especially those who are unaccompanied or separated from their families, members of ethnic and religious minorities, victims of violence, older persons, persons with disabilities, persons who are discriminated against on any basis, indigenous peoples, victims of human trafficking, and victims of exploitation and abuse in the context of the smuggling of migrants. (25)

    Member States also committed to take measures to improve the integration and inclusion of migrants and refugees, as appropriate, with particular reference to access to justice. (26) They also "committed to implementing border control procedures in conformity with applicable obligations under international law, including international human rights law and international refugee law." (27) In addition, they stated that they would "protect the human rights and fundamental freedoms of all refugee and migrant children, regardless of their status," and, referring to Article 3(1) of the Convention on the Rights of the Child, they would "giv[e] primary consideration at all times to the best interest of the child." (28)

    Member States plan to adopt a global compact for safe, orderly, and regular migration and present it at an inter-governmental conference to be held in 2018. (29) They also plan to develop a comprehensive refugee response framework through the process of state negotiations and based on the principles of international cooperation and on the sharing of the burdens and responsibilities of refugees more equitably, and which will be elaborated by UNHCR. (30)

    Along with these undertakings, the Declaration includes many more commitments by Member States. Human Rights groups have been critical of the Declaration, as will be evaluated later in this article. It should, however, be noted here that notwithstanding these glowing promises, state practices do not match those commitments.

  3. CHALLENGES OF MIGRATION AND RECENT EFFORTS TO PROTECT MIGRANTS' HUMAN RIGHTS

    Migrants increasingly face restrictive immigration policies by states, such as restricting the inflow of migrants and "push-backs" at land and sea as border control measures, interception practices, detention, and even deportation. Two recent examples are the detention law in Hungary and deportation law in Belgium. On March 7, 2017, the Hungarian Parliament adopted a new law calling for mandatory detention of all asylum seekers, including children, for the entire length of the asylum procedure. (31) In a press briefing, the UNHCR spokesperson expressed deep concern that the asylum seekers "will be detained in shipping containers surrounded by high razor wire fence at the border for extended periods of time." (32) It should be noted that Hungary had already enacted legislative and policy obstacles in addition to the physical barriers it had erected, which had made it nearly impossible for asylum seekers to enter the country and apply for asylum. The spokesperson reminded Hungary that there are only a limited number of grounds to justify detention of refugees and asylum seekers and it must be "necessary, reasonable and proportionate" to do so. She reminded Hungary that failure to consider alternatives to detention could render detention arbitrary. Children, she said, should never be detained, for detention is never in a child's best interest. (33)

    Under the law passed by Belgium's Parliament, the government is given extraordinary powers to deport legal residents of foreign origin, of whom there are about 1.3 million; (34) however, the law excludes Belgian nationals and refugees. Under the law, foreigners legally resident in Belgium could be deported...

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