Refugee and Asylum Laws - Essay Example

Refugee and Asylum Laws In November, 1950 The European Commission for Protection of Human Rights and Fundamental Freedoms ECHR was signed at Rome. In September, 1953 it came into full swing comprising of 22 parties. There were eleven more Protocols to European Convention signed, in order to improve the convention or to add to the rights recognized in convention .There are a total of 66 Articles divided into five sections in European Convention (Greer, 2007). The Convention led to the establishment of the European Court of Human Rights. This provides the common man who feels that his rights have been violated under the convention to plead his case in court against a state party. Any decisions awarded by the court are legally binding and also the court has the power to charge damages. The very establishment of such a court which deals with the individual’s human rights protection is a positive an promising change as it gives the individual the position of active role internationally as compared to the fact that only states played the role of actors in international law. To this day it is only the European Convention which provides any individual with the strongest protection as far as international human rights agreement is concerned. State parties can also take cases against other state parties to the Court, although this power is rarely put to test (Greer, 2007). The Convention has several protocols. These protocols differ in aspect of being accepted from state to state although it is a fact that state parties should be party to any number of protocols. For example, Protocol 6 prohibits the death penalty except in time of war. It was not before the Protocol 11 came into existence that the individuals could approach the court directly; One had to opt for the indirect route and approach the European Commission of Human Rights, which in fact would first establish whether the case was well founded and only if it were would present it to the Court on the individuals behalf (Greer, 2007). Furthermore it limited the possibility of jurisdictional protection, by not accepting the clause altogether which would grant the individual access to the commission at the time of confirmation. Protocol 11 conveniently put an end to this Commission, also expanded the Court (assigning to it functions and powers which were previously held by the Commission), and allowed individuals to take cases directly to it. By accepting Protocol 11, all state parties accepted the jurisdiction of the Court to rule over cases brought against them by individuals (Greer, 2007). Implementation The implementation of the European Convention can be divided into following two parts: The Old System and the new or the present system. The old system carried on till 31st October, 1998. Protocol XI of the European Convention put an end to all the provisions concerning the Commission in the European Convention .There were two institutions for the implementation of the Convention under the old system which lasted up to 31st October, 1998. They were European Commission of Human Rights “the Commission”, and a European Court of Human Rights “the Court” (Geddes, 2002). This Commission consisted of a number of members equivalent to that of the High Contracting Parties, and the rule being that no two members could be nationals of the same state. These members of the Commission were elected through the Committee of Ministers of the Council of Europe by an absolute majority of votes; The Bureau of the Assembly was responsible for providing the list of names (Geddes, 2002). The elected members of the commission had tenure of six years. They are entitled for re-elections. The election was formulated in a way that half the members could be relieved of the original convention every three years. The seating was designed in accordance to member’s faculty. The Commission received not only inter-state communication but as well as individual communication alleging breaches of the provisions of the convention (Geddes, 2002). The most prominent feature of the European Convention for the Protection of Human Rights and Fundamental Freedom is the optional procedure under article 25, according to which an individual who claims to be the victim of a violation of rights that are guaranteed by the convention could thereby lodge a complaint against his own (or another) government to the Convention for investigation. Individual so seeking is permitted direct access to an international tribunal and has the full authority to pursue his rights under International law (Clayton, 2006). Altogether, the Commission proved a vital element so far that the ECHR established .It proved both efficient and important thereby receiving a number of petitions every year. The provisions relating to European Commission on Human Rights were deleted with effect from 1st November, 1998. The present state being that today there is no European Commission on Human Rights (Clayton, 2006). After the provisions of the European Commission on human rights being deleted the only institution for the implementation of the provisions of the European Convention for the protection of Human Rights and Fundamental Freedoms (1950) left is European Court of Human Rights. In accordance to the present system, European Court of Human Rights remains the only institution for the implementation of the European Convention. Hence it would be fruitful to discuss the detailed provisions of the European Convention relating to the Court (Seddon, 2006). Article 32 of the European Convention states that the jurisdiction of the Court be extended to all matters that concern ,interpret, and application of the Convention and of the protocols which are referred to it, as provided in Articles 33, 34 and 47. In case of any confusion whether it falls in the jurisdiction of the court, the court shall be the deciding element (Seddon, 2006). Hence The European Court could have following three types of jurisdiction. They are (Greer, 2007): (1) Inter-State cases (Article 33); (2) Individual application (Article 34); (3) Advisory Opinions (Article 47). Satisfaction would be afforded to any such injured party to whom the court finds that there may have been a violation of the protocols or of the convention or that the internal law of the high contracting parties has only acknowledged partial compensation. Under Article 46 of the Convention, the High Contracting Parties acknowledged to follow the final judgment of the Court in any case to which they are parties. This final judgment will be conveyed to the Committee of Ministers that at its execution are the supervisors (hathaway, 2005). Some Example Cases Handyside v. United Kingdom This case represented the right of freedom of expression as of in article 10 of ECHR. In this particular case Handyside was duly convicted and fined with resultant seizure of his book as all was in accordance to the Article 10(2) with “protection of morals “as its basis (Blackburn 2002, p. 124). Ireland v. United Kingdom This case dealt with degrading treatment or manhandling and freedom from torture under the Article 3 of ECHR .The implication of the case was that the manner itself led to the breach of article in that it being and degrading (Blackburn 2002, p. 124). 3. Wemhoff v. Federal Republic of Germany This case represented the liberty of the person and constituted the analysis of Article 5(3) and Article 6(1) of ECHR (Blackburn 2002, p. 124). The European Convention for Protection of Human Rights and Fundamental Freedoms (1950) is the first momentous regional convention on human rights, and is much more far stretched than the Universal Declaration of Human Rights. It obligates and binds civil and political rights within. It provides exact meaning to civil and political rights by making the contents transparent by including exceptions limitations or restrictions to which such rights are due (Greer, 2007). Furthermore, It provides a mechanism for the implementation of rights, which are, (a) Commission; (b) the Court; and (c) the Committee of Ministers. This commission was deleted by Protocol XI on 31st October, 1998. It is an achievement and progress that there is now a possibility of the case being represented at court as regards the European Court of Human Rights (Greer, 2007). Relating to the Status of Refugees The United Nations Convention is an international convention which outlines the parameters of a refugee, and defines the rights of individuals who are granted asylum and the responsibilities of such nations as to who grant asylum. The convention also clarifies people which fail to qualify as attaining the status of refugees, such as war criminals. The Convention facilitates for some visa-free travel to holders of travel documents issued under the convention (Kamanga, 2003). On 28 July 1951, the convention was sanctioned at a special United Nations conference. Initially it dealt with the protection of European refugees after World War II but the 1967 Protocol expanded the range of the convention by eliminating the time limits and the geographical restriction. The convention was approved in Geneva, and hence it is often referred to as "the Geneva Convention," though it is not one of the Geneva Conventions predominantly in handling of the predefined behaviour in times of war (Kamanga, 2003). Denmark was the first state to accept the treaty (on 4 December 1952) and there are now 147 more countries to accept the Convention or the Protocol or both. Article 1 of the Convention as amended by the 1967 Protocol provides the definition of a refugee: "A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.." (Kmanga, 2003) Refugee law falls under international law and deals with the rights and protection of related to, but distinct from, international human rights law and international humanitarian law, which deal respectively with human rights in general, and the conduct of war specifically (Clayton, 2006). The Right of asylum or political asylum is an old judicial concept, under which a person persecuted for political reasons or religious beliefs in their own country may be protected by another sovereign authority, a foreign country, or Church sanctuaries (as in medieval times). Political asylum however should not be mixed up with modern refugee law, which on the contrary deals with massive influx of population, while the right of asylum concerns individuals and is usually handed over in a case-to-case basis. Yet, the two crisscross each other’s path in that the individual refugees may seek individual political asylum . This right traces has its roots all the way to the Western tradition—nevertheless it was already recognized by the Egyptians, the Greeks and the Hebrews—Descartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War), etc. Each state thus offered protection to foreign persecuted persons. The formation of bilateral extradition treaties in the 20th century of has put in jeopardy the right of asylum, although international law confirms that a state holds no obligation in the surrendering of an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders (Seddon, 2006). The spirit behind the censure of the 1951 UN refugee Convention is that it is not in accordance to the time period it exists in. The treaty was designed for a different time period altogether. Although, the Western countries asylum systems coped well till the end of the Cold War, yet they were not designed to handle today’s mass refugee influx, and thereby their migratory movements. Here we deal with the problematic offshoots in accordance with the handling of the convention, which the researchers and the critics pointed out over a period of 10 years. Statistics, unless otherwise indicated, are from the UNHCR or the USCR (Blackburn, 2002). 1951 Geneva refugee Convention posed a problem being that the backbone of refugee protection is that it provides neither a rigid nor a flexible response to the variant and psychol of forced population movements that occur today. This in itself is causing the Western countries to deviate from using their resources to more needed and fruitful matters and has by large impaired the logical and ethical responses (Geddes, 2002). To summarize the problem further we can simply look into what it dissociates itself from. The Convention does not grant any right of assisting refugees until or unless they have reached the desired country. It further does not grant any assistance on the internally displaced’. It does not impressionate governments to not persecute their citizens, or for that matter alleges their safe return. It provides no design in controlling of mass outflows, for sharing of burdens between states, for procurement of speedy assistance for those most needy, or for optimizing the efficiency of international resources. And it does not arrange the containment of receiving states. What the Convention does in the provision of revising the international refugee regime imposes a problem: a system that provides protection to people who face persecution in their own countries. Regardless the fact that they become lost in the overflowing mass claims yet few countries give up the opportunity to entertain such people. Works Cited: Blackburn, R. 2002. Fundamental Rights in Europe: The ECHR and Its Member States, 1950-2000. Oxford University Press. Clayton, G. 2006. Textbook on Immigration and Asylum Law. Oxford University Press. Geddes, A. 2002. The politics of Migration and Immigration in Europe. Sage. Greer, S. 2007. The European Convention on Human Rights: Achievements, Problems and Prospects. Cambridge University Press. Hathaway, J. C. 2005. The Rights of Refugees under International Law. Cambridge University Press. Kamanga, K. 2003. The Refugee Convention at Fifty: A View from Forced Migration Studies. Lexington Books. Seddon, D. 2006. Immigration,Nationality and Refugee Law Handbook. JCWI. Read More