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Human Rights in a Downward Spiral?

Date:24 November 2015
Author:GHLG Blog

By Veronika Flegar, University of Groningen,

With the high number of asylum seekers arriving in Europe, states increasingly struggle to simultaneously accommodate the interests of their citizens and abide by their human rights obligations. Particularly in light of the increasing fear of terrorism in Europe tensions may arise between security concerns and human rights. I suggest that anyone interested in human rights should think about these developments as the current number of people requesting asylum in Europe is not only a test case for the integration capacity of Germany or for the functioning of the European Union, but also for the perseverance and strength of human rights. The goal of this post is not to provide a legal analysis of the issue but rather to raise awareness for the role of human rights in this context.

After World War II, states have committed themselves to several treaties in order to prevent similar atrocities in the future. One of these treaties was the 1951 Convention Relating to the Status of Refugees (currently 145 state parties). According to this Convention, state parties have to grant protection to persons who cannot return to their country of origin because they have a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. These persons – refugees – have the right to not be punished for illegal entry (Article 31), the right to not be expelled (Article 32), the right to work (Articles 17 and 19), the right to housing (Article 21), the right to education (Article 22), the right to public relief and assistance (Article 23), the right to freedom of religion (Article 4), the right to access to justice (Article 16), the right to freedom of movement within the territory (Article 26) and the right to be issued identity and travel documents (Articles 27 and 28).

Additionally, states have adopted several human rights treaties that emphasize the universal and inalienable character of human rights. The universality of these human rights should, from a moral perspective, make them applicable to both nationals and non-nationals despite the limitations introduced in some articles. The rights entailed in these treaties that seem most relevant in the current situation are the right to life, the prohibition of torture and inhuman or degrading treatment, the principle of non-discrimination, the right to a fair trial, the right to health, the right to food, water and sanitation, the right to housing and the right to education.

While this seems like a broad protection framework for asylum seekers and refugees, news stories remind us continuously that even countries such as the Netherlands and Germany do not always ensure such protection in practice: The Netherlands, for example, recently considered letting ‘healthy young male asylum seekers’ sleep on the streets rather than in the asylum seeker centers if reception capacity runs low. Moreover, both Germany and the Netherlands have reduced the financial benefits for asylum seekers and increasingly provide in-kind benefits rather than a weekly allowance to asylum seekers and refugees. Furthermore, persons who have already been recognized as refugees in the Netherlands are increasingly placed in containers rather than actual housing. Germany is discussing a limitation of the family reunification possibilities for asylum seekers, potentially leaving behind women and children in war-torn Syria. These are only some of the most topical examples that clearly point towards a potential downwards spiral in the human rights protection of asylum seekers and refugees.

As if these measures in the social rights sphere wouldn’t already be enough to consider whether this will potentially lead to a downward spiral of all human rights, retrogressive measures are also being discussed in the context of border control. Due to the increasing fear of terrorism, states are likely to further limit the entry possibilities for asylum seekers and refugees. This is a dangerous next step that would violate one of the most fundamental human rights: the principle that someone cannot be returned to a country where he or she would face torture or inhuman and degrading treatment (the principle of non-refoulement). In deciding upon any such measures in order to increase security, two things should always be kept in mind: first, most of the people requesting asylum in Europe are actually fleeing the same people we fear might commit an act of terrorism. If we fear terrorism could endanger our ‘culture’, ‘values’ or ‘identity’ it must be realized that also asylum seekers are not only fleeing from war and violence but also leave their country because their way of life seems no longer possible. Second, whenever ‘our identity’ is emphasized: do human rights not form an integral part of any such identity? No matter how diverse or blurred any picture of Western or European identity is, democracy, the rule of law and human rights are certainly an integral part of it. If this identity is to be protected, we can therefore not allow security or any other considerations to lead to limited human rights for asylum seekers or refugees. After all, how can we possibly protect any identity which we don’t even seem to live up to ourselves?[1]

In trying to end on a positive note, we should also keep in mind how far we have already come. Human rights in Western Europe are generally well-protected and states increasingly see them as an integral part of their policies rather than as a mere ‘necessary evil’. I cannot provide any useful answers on how to deal with increasing security threats or on how to cater for the increasing number of asylum seekers and refugees. Nevertheless, I would like to emphasize that whichever road will be chosen in dealing with these issues, we should remember that human rights are the essential building blocks for any long-term solution and should therefore not be done away with too readily.

Questions for further discussion:

What is the value of human rights if states can divert from them in situations of crises?

Is there a need for stronger safeguards to ensure states abide by their human rights?

How can we reconcile security concerns and universal human rights?

[1] Of course the whole idea of ‘we’, ‘us’ and ‘our’ vs ‘them’ is in itself problematic and worth discussing in more detail in the future.


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