The Fail Of The Universal Declaration Of Human Rights To Account For Refugee Rights

The loss of civil rights is consistently linked with the loss of human rights contradicting their apparent inalienability – this occurrence for refugees, suggests the inherent failure of the United Nations in protecting human rights under the Universal Declaration of Human Rights 1948. The question this essay poses is: why did the Universal Declaration of Human Rights constructed by the United Nations (UN) fail to account for refugee rights and how can this be addressed through international politics? This essay will firstly define what is meant by ‘refugees’ and provide an overview of how human rights have failed to account for them in the international system. It will then criticise the role of the United Nations in enforcing and protecting human rights for refugees who require external legal protection due to lack of any overarching national law. The arguments that will be analysed are, the lack of compliance of member states and contradictory nature of state sovereignty. There will also be an evaluation of how recent protection of national security under the Copenhagen’s school of thought of securitisation, has compromised the impact of UN agreements. This essay will then deconstruct two approaches to address the lacuna in refugee human rights based on utilitarian and humanitarian schools of thought.

In order to understand the context and issue surrounding refugee human rights, we must first identify what is meant by ‘human rights’ and how this applies to ‘refugees’. In this essay I use the term ‘refugee’ to refer to those who are unable to return to their home country due to prospects of persecution or do not guarantee safe living conditions. Moreover, for this research question, ‘human rights’ refers to a list of values outlined in the Universal Declaration of Human Rights, 1948, that aim to monitor the way all people are expected to be treated (Dembour 2010, p. 3). This presents an issue for the United Nations who must consider that human rights for refugees are simultaneously deprived when civil rights can no longer protect refugees from the state from which they are fleeing. Thus they are denied the ability to make lawful claims based on membership, leaving them reliant upon human rights. However, the United Nations have failed to enforce compliance of member states as appeals to human rights are ‘neither free nor equal’.

The failure of state members to comply to the UDHR and lack of legal enforcement for non-members, illustrates the failure of the United Nations in ensuring refugees the right to asylum. Member states have adopted different policies to prevent refugees from ‘enjoying the right’ to asylum. Despite being signatory to the UDHR, member states do not appear to consider refugee rights in internal affairs. The hypocrisy of the Declaration is illustrative of how refugees simultaneously lost national rights and human rights despite the introduction of this universal agreement. Thus, demonstrating the failure of the UN to implement and encourage compliance. From the initial development of the Declaration, participants involved in the drafting were committing refugee human rights violations themselves. For example, Britain denied Jewish refugees left displaced following WW2 asylum in Palestine, instead interning them in Cyprus or being returned to Europe. The continuance of refugee rights violations by signatory states is evident in the modern context further demonstrating the inability of the UN to protect the rights of refugees. Australia’s ‘Pacific solution’ and US external processing and intercepting refugees at sea for example reflect the physical denial of individuals from being granted asylum (Boswell 2003). Larking (2014) recognises this, stating how wealthy liberal democracies falsely endorse human rights demonstrated through high government spending on military and detaining refugees externally. The concept that sovereignty trumps international agreements, strengthens the argument that the United Nations has failed to support refugees in their demand for essential human rights. This stands in direct contrast to Koh (1999), who takes an optimistic view that transnational legal processes have been successful in internalising the UDHR into domestic legal systems. This is coherent with the President of the General Assembly of the UN who commented that the UDHR is evolutionary and supported by the members of the United Nations. Koh’s argument does not account for the lack of follow up mechanisms to enforce refugee human rights as they become not merely legally restricted from rights, but physically denied the right to seek and enjoy asylum in other countries, as stated by Article 14 of the UDHR. This demonstrates the failure of the United Nations in enforcing compliance of signatory states with the UDHR, allowing us to conclude that its role is limited.

States are exercising their right to sovereignty which compromises the enforcement of international agreements to protect refugee rights as the core principle to sovereignty permits non-intervention in national concerns. The contradiction of the Peace of Westphalia outlining the entitlements of state sovereignty, and the Universal Declaration of Human rights has minimised the applicability and influence of this UN agreement. Sovereignty creates a tension between the inalienability of human rights as states cannot guarantee and are not held accountable for their violations of refugee human rights, in particular using sovereignty to avoid obligations of the UDHR. The United Nations fails to limit or control national sovereignty leaving refugees at the hand of national arbitrariness. Evidently, Article 14 of the Universal Declaration of Human Rights declares that ‘no person shall be subjected to such measures as rejection at the frontier’ whilst contradicting the inherent principles of sovereignty; that states have the prerogative of allowing or prohibiting refugee movements. Koskenniemi further criticises the term sovereignty as manipulatable as it can be used to supersede the UN Declarations and provide reasoning for hard-line immigration policies. This is reflected amongst many regional conventions demonstrating preference of sovereignty over protection of refugee human rights. The Convention on Territorial Asylum instigated by the Organisation of American States in 1954 identifies in Article 1 that “every state has the right, in the exercise of its own sovereignty, to admit into its territory such persons as it deems advisable”. Similarly, the communitarian school of thought recognises sovereignty as the right to exclude exemplifying their competing concern of refugee flows. This partialist approach expresses higher concern for a country’s own citizens over the protection of rights of refugees as long as they have not actively been the primary cause of the violations (Brugger, 2003). They understand that the fundamental cause of global order is the respect for national sovereignty and protection of citizens, hence, demonstrating states consideration of sovereignty compromising the rights of refugees. Alternatively, Popovski believes that sovereignty in the modern context has been ‘reconceptualised’ to the extent that sovereignty is citizen orientated, thus human rights are considered at the core. Whilst optimistic, the logic is flawed in that it assumes all nations act on their right to sovereignty in similar ways. Therefore, the principles of sovereignty have minimised the impact of UN agreements to protect the rights of refugees as they recognise responsibilities to their own citizens over refugee rights.

However, the United Nations cannot be completely to blame for the failure of refugee rights protection, more recently protection of national security has become a serious consideration and core to international politics. The end of the cold war saw scholars shift analysis of refugees from a humanitarian crisis to one of potential economic, social and security threat. Wilson (2005) argues that this caused scholars to view refugees as a liability rather than an economic asset as they were historically perceived. This recent shift in perception of refugees Robert Mandel (1997) argues is driven by 3 core factors. In particular, he focuses on threat of internal political instability, the lack of economic resources and associated economic burden and the threat to cultural identity. The increased evaluation of refugees as security threats to host countries and the prominent influence of scholarly analysis on policymakers can be recognised through the shift of policymaker decisions to hard-line policies aimed to minimise this threat. As Posen argues, governments have a ‘greater inclination’ to apply military measures to counteract this supposed security threat. This has created a discourse under constructivist rationality and is coherent with the Copenhagen School’s theory of securitisation, recognising the idea of socially constructed security dilemmas surrounding the ‘fear’ of immigrants. This then presents the argument that immigration policy can be securitised on the basis of the established discourse causing the issue of human rights for refugees to become inferior to national security. Therefore, the Copenhagen School’s theory of securitisation suggests that the UN is not completely to blame for the failure of the UDHR in regard to refugees. The discourse created by scholars allows them to ‘create truth’ around the security threat posed by refugees, encouraging policymakers to strengthen hard-line policies which further diminishes refugee access to human rights.

It is undeniable that in response to the discussed issues with the UDHR agreements and their implementation, it is vital that impartialist approach is necessary to address the lacuna in refugee human rights. It is an impartial approach that will be most beneficial in promoting refugee rights and this will be further elaborated. Pogge (2003) sees the responsibility of wealthy nations to support refugees through aid and preventative measures and respectively improve their access to both human and civil rights. In particular, states that reflect social and economic prosperity, have come to this through ‘enslavement, colonialism, even genocide’ which has correspondingly been a causing factor of refugee movements. A similar, approach by Peter Singer (1988) introduces the utilitarian theory to develop his argument that wealthy developed countries are morally responsible to protect refugee human rights adding to the impartialist school of political theory. The overarching concept is that in the tension between rights of refugees and national interests the more important interests should take preference over the other, whereby the concluding outcome is always more beneficial. Gibney (1999) notes that this results in an ‘equilibrium’ of marginal benefits between national sovereignty and considering the rights of refugees. While one may recognise both approaches to address human rights for refugees are important in their respective ways, both need to be combined to effectively work towards the equal access of refugees to human rights. Developed countries who have historically contributed to the refugee crisis, have a moral responsibility to alleviate the situation and ensure the UDHR are followed. Furthermore, any state that gains marginal benefits under the utilitarian theory, who are in position to protect refugee human rights are morally obliged to act. Therefore, through combining both Pogge’s and Singer’s approaches to promoting refugee human rights, there would be a sustainably higher intake of refugees, thus providing them access to both civil and human rights simultaneously.

The primary purpose of this paper has been to demonstrate why the Universal Declaration of Human Rights instigated by the United Nations has been unsuccessful in ensuring the supposed inalienability of the declaration particularly for refugees. The core issue that has arisen from this essay is the exclusion of legal recognition for refugees, closely correlated with a relegation of justice to refugees who are completely rightless. The reason for this failure is multifaceted however is predominately due to the inability of the UN to limit the influence of national sovereignty and that the agreements do not legally bind signatories, reflected by the obedience of member states, lowering the standard to which other states need to comply. However, the discourse created by the securitisation of nations has prompted an increase in hard-line policy’s reacting to the posed threat of refugees. The inability to protect refugee rights cannot be completely attributed to the UN and thus a worldwide solution must be considered as proposed in the latter part of the essay.