Domesticate International Human Rights Law (IHRL), protect refugees?

The Geneva Convention is grounded in Article 14 of the Universal Declaration of Human Rights which states that all humans have, “the right to seek and enjoy asylum from persecution”[1]. Carmelo Danisi observes how IHRL could therefore facilitate and support IRL in states that are bound by the Geneva Convention and human rights treaties.[2] Looking specifically at sexual orientation, she firstly stipulates that human rights are enhancing protection of those seeking asylum based on sexual orientation through ensuring they have access to their rights and freedoms.[3] He then uses this idea to suggest that IHRL could then transpose this support onto IRL throughout the process of asylum seeking. [4]

By this, IHRL could help to ensure asylum seekers have the access to procedures to establish refugee status and could also help to consolidate definitions of persecution when it comes to sexual orientation.[5] In other words, IHRL could play a role within the entire process which could positively affect the ultimate decision. This could further assist in challenging prior arguments concerning essentialist forms of identity. Placing IHRL within the process of asylum seeking could help to acknowledge the complex and dynamic identity of the asylum seeker that Karimi was seeking to raise awareness of. This could further help to pull states out of the binary narrative of who “is” a refugee and who is not as they could now be encouraged to acknowledge their responsibility throughout the immigration process and consequentially acknowledge their full identity. This could equally result in a shift away from the statist perspective of international institutions and so allow space for structural change and innovation.[6]

One way in which IHRL could practically be incorporated into immigration processes is through the adoption of IHRL within legal practice. Concerning himself predominantly with the UK, Professor Stephen Meili argues that refugee lawyers could act as the bridges between domestic law and international law; addressing the dissonance between immigration processes at state borders and IHRL.[7] He suggests that sources of IHRL could be used by these lawyers in order to override IRL and help refugees to receive adequate protection.[8] For example, mechanisms of IHRL such as the Convention on the Rights of the Child could be incorporated into the process of protecting child refugees who are not specifically provided for within the Geneva Convention. This creates an additional obligation for immigration authorities to protect children that make up half of the refugee population.[9] Furthermore, the European Convention of Human Rights (ECHR) is currently being adhered to by the UK and Article 5 stipulates, “everyone has the right to liberty and security of person”.[10] This could be utilised by lawyers to ensure refugees are being treated adequately throughout the immigration process and when influencing decisions at state borders.

Here, it is evident that Stephen Meili is not suggesting IHRL override state decisions but is rather suggesting IHRL be applied to domestic situations, particularly concerning refugees.[11] UK lawyers incorporating IHRL within domestic legal systems as a means of influence could be argued to act as a more realistic way of integrating IHRL into state operations. [12] This method realises and accepts the decisive power of the state and does not attempt to deny it which could potentially create a more conversational interaction between domestic law and international law that renders both disciplines inextricably linked and mutually informative.

Using this logic, it could be that incorporating IHRL into domestic law instead of transcending it could be a more effective means of achieving universality; through global domestication. The refugee, in this case, has then provided a means for which IHRL to operate from an alternate standpoint. Although, it might be worth considering here that, just as the state has been at liberty to manipulate sources of IRL, the same could be done with IHRL in that, should obligations be incorporated into domestic law, these could again be manipulated to meet state interests. However, it could also be argued that states would still be drawing from sources relating to International Human Rights and so would be required to work within this framework. This could be seen as preferable to not working within any framework of International Human Rights. As a final thought on this, to incorporate IHRL into domestic law may further require a process of translation. As Danisi contends, all laws are a product of the surrounding culture and political climate in which they were constructed.[13] Therefore, there will need to be consideration taken into how IHRL can be transposed on to multiple cultures whilst maintaining its original legal basis.

Taking this conversation forward, Professor Sally Engle Merry, specialising in the Anthropology of Law, advocates for the “vernacularisation” of human rights into the domestic realm.[14] With this, she encourages a mutual translation of human rights into local cultures and for local perspectives to be understood by human rights actors.[15] She argues that, by localising concepts of human rights, it is more likely that they will be adopted by communities due to the idea that people will be able to relate to them.[16] The language of the universal being translated to the national and the local means that human rights will have “one foot in the international community and one at home”[17]. This will encourage more situations that are regarded as normal according to cultural standards but involve human right violations to be addressed. Merry uses the example of Female Genital Mutilation (FGM) to iterate this position.[18] FGM violates the human right to health, to be free from violence and non-discrimination, yet, it is traditional and common in countries where it is practised.[19] It is then important for this perspective to be considered in order to attempt to communicate these violations to these communities and influence change.[20]

Encouraging thought on the cultural aspect to human rights could be important as it addresses the dissonance between the local and global whilst also encouraging an assessment into the culturally rooted aspects of human rights. The concept of “freedom” often holds connotations of independence, choice and movement. Merry reiterates this with the idea that human rights in the transnational sense “promote autonomy, choice, equality and secularism”.[21] These qualities have been argued to be intrinsic to Eurocentric and Hesperian ways of encapsulating the human which are, as Merry elegantly puts it, “embedded within the legal documents of IHRL”.[22] Therefore, it could be important to recognise that transposing human rights onto local cultures might not simply be a case of introducing a new social practice but also introducing an alternate way of thinking. The malleability of IHRL to adapt to and embed within the consciousness of various communities whilst retaining its legal grounding may be the process by which universality can be achieved.

[1] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR). Article 14. [2] Carmelo Danisi, Crossing borders between International Refugee Law and International Human Rights Law in the European context: Can human rights enhance protection against persecution based on sexual orientation (and beyond?), Netherlands Quarterly of Human Rights,Vol. 37, No. 4, (2019), p. 360. [3] Carmelo Danisi, Crossing borders between International Refugee Law and International Human Rights Law in the European context: Can human rights enhance protection against persecution based on sexual orientation (and beyond?), Netherlands Quarterly of Human Rights,Vol. 37, No. 4, (2019), 359-378. [4] Ibid. [5] Ibid. p. 360. [6] Niklaus Steiner; Mark Gibney; Gil Loescher and Angela D. Nurse, Problems of Protection: The UNHCR, Refugees and Human Rights, (Taylor and Francis Group 2003). [7] Stephen Meili, U.K. refugee lawyers: pushing the boundaries of domestic court acceptance of international human rights law, Boston College Law Review, Vol. 54, No. 3, (2013), 1122-1148. [8] Ibid. p. 1122. 154 UNHCR, ‘Note on Refugee Children EC/SCP/46’, (UNHCR 1987): https://www.unhcr.org/uk/excom/scip/3ae68ccc18/note-refugee-children.html, [accessed 2nd September]. [10] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) , Article. 5. [11] Stephen Meili, U.K. refugee lawyers: pushing the boundaries of domestic court acceptance of international human rights law, Boston College Law Review, Vol. 54, No. 3, (2013), 1122-1148. [12] Ibid. p. 1148. [13] Carmelo Danisi, Crossing borders between International Refugee Law and International Human Rights Law in the European context: Can human rights enhance protection against persecution based on sexual orientation (and beyond?), Netherlands Quarterly of Human Rights,Vol. 37, no. 4, (2019), 359-378. [14] Sally Engle Merry, Human rights and gender violence: Translating international law into local justice, (Chicago: University of Chicago Press 2009). [15] Ibid. [16] Ibid. [17] Ibid. p. 229. [18] Ibid. [19] Human Rights Watch, ‘Q&A on Female Genital Mutilation’, (Human Rights Watch, 2010): https://www.hrw.org/news/2010/06/16/qa-female-genital-mutilation, [accessed 10th September]. [20] Sally Engle Merry, Human rights and gender violence: Translating international law into local justice, (Chicago: University of Chicago Press 2009). [21] Sally Engle Merry, Human rights and gender violence: Translating international law into local justice, (Chicago: University of Chicago Press 2009), p. 220. [22] Ibid. p. 221.