A step by step guide on how to answer a question on each topic of international human rights law in the exam. It includes all the relevant law, general comments and what court to go to. I achieved 75% in this module and graduated with a First Class Honours.
INTERNATIONAL HUMAN RIGHTS PROBLEM QUESTION NOTES
RIGHTS OF REFUGEES
Definition: 1951 Convention Relating to the Status of Refugees, Article 1A(2) as amended
by the 1967 Protocol
o [Any person who] owing to 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 to, or
owing to such fear, is unwilling to avail himself of the protection of that
country; or who having no nationality, is unable to return to the country of
his former habitual residence.
The criteria for being a refugee on the basis of this definition is:
A ‘well-founded fear of persecution’
Fear based on civil and political factors
Gender/ Sexual orientation?
General Violence
Economic immigrants? Displaced?
Conflicting Interests:
Rights v state interests:
o State sovereignty legitimate interests for states to:
Safeguard borders
Confer nationality/citizenship
Protect national security
Admit and expel foreigners
Combat human trafficking/terrorism
o Human rights approach
International humanitarian & IHRL
A human right to asylum?
Universal Declaration of Human Rights 1948
o Article 14 – right to SEEK asylum
o Article 13 (2) – right to leave any country
European convention on Human Rights 1950
o Article 3 – right to not be tortured
International Covenant on Civil and Political Rights 1966
o Article 7: ‘No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment’.
1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment and Punishment
o Article 3 (1): ‘No State Party shall expel, return (‘refouler’) or extradite a
person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture’.
Charter of Fundamental Rights of the European Union 2000
, o Article 19: ‘No one may be removed, expelled or extradited to a State where
there is a serious risk that he or she would be subjected to the death penalty,
torture or other inhuman or degrading treatment or punishment
ECHR Hirsi Jamaa: A person does not become a refugee because of recognition but
is recognised because he or she is a refugee. As the determination of refugee status
is merely declaratory, the principle of non-refoulement applies to those who have
not yet had their status declared (asylum-seekers) and even to those who have not
expressed their wish to be protected. Consequently, neither the absence of an
explicit request for asylum nor the lack of substantiation of the asylum application
with sufficient evidence may absolve the State concerned of the non-refoulement
obligation in regard to any alien in need of international protection.
Refugee: Rights
International law does not give to individuals the right to asylum, but the right to
SEEK ASYLUM
1951 Geneva Convention & 1967 Protocol established 3 fundamental principles:
1. non-discrimination: Art 3: Convention applied without discrimination as to
‘race, religion or country of origin’
2. non-penalization: Art 31(1): refugees not penalized for their illegal entry or
stay this includes fines and detention
3. non-refoulement: the state cannot expel a refugee or stateless person
except on grounds of national security and public order (Art 33(1))
Art 33(2) - Exceptions to non-refoulement only accepted in the
Convention, not in ECtHR:
if the refugee is a risk to national security
after final conviction for a particularly serious crime- risk to the
society
o Detention not clearly addressed in the Convention: states shall not impose
penalties, if asylum seekers present themselves as soon as in the state; states
shall not apply restrictions of movements than necessary (but 2012 UNHCR
Guidelines)
Pushbacks: Non – refoulement
1951 Refugee Convention Art 33
1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment and Punishment
o Article 3 (1): ‘No State Party shall expel, return (‘refouler’) or extradite a
person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture’.
Charter of Fundamental Rights of the European Union 2000
o Article 19: ‘No one may be removed, expelled or extradited to a State where
there is a serious risk that he or she would be subjected to the death penalty,
torture or other inhuman or degrading treatment or punishment
, ECHR: Art 4 of Protocol 4: ‘collective expulsion of aliens is prohibited’ Saadi case and
Hirsi Jamaa case
The law:
Boats
o Hirsi Jamaa:
boats have responsibility to save
the state of the sea also has responsibility
Does not matter that they have not applied for refugee status, they
should be treated like refugees
Push back violated non-refoulment (art 3 ECHR // art 33(1) RC)
1979 International Convention on Maritime Search and Rescue
Detention
o International Covenant on Civil and Political Rights 1966 – Art 7 torture
o M.S.S. v. Belgium and Greece:
Conditions of life must be respected -Otherwise, violation of art 3
ECHR
o UNHCR Guidelines 2012
EU asylum framework: Dublin regulation
asylum seekers make just one claim, and this must be in the first EU member state
that they enter.
A person found to have claimed in another country or transited through another
country can be returned under a Dublin transfer. (Operationally underpinned by
EURODAC)
Revised Dublin Regulation:
o enhances the protection of asylum seekers during the process of establishing
the State responsible for examining the application
o clarifies the rules governing the relations between states.
o creates a system to detect early problems in national asylum or reception
systems, and
o address their root causes before they develop into fully fledged crises.
FREEDOM OF THOUGHT, RELIGION, AND EXPRESSION
General principles of restricting rights
Legality – the restriction must be prescribed by law which always assumed
Legitimate aim – must be based on a limitation listed in international law
Proportionality – is it absolutely necessary in a democratic society?
‘Presumption of freedom’ - limitations narrowly construed
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