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Author: Sam Siryon 2nd Year student of BA.LLB Honors at the Apeejay Stya University-Gurgaon
Abstract:
Human rights protection is a universal issue and all nations regardless of its so-called sovereign power, are duty-bound to ensure that peoples rights are not hindered in an unjust manner and that all people are free to enjoy their rights regardless of their nationality, sex, race, religion or any other factors. What are human rights and how are to protected globally?
Human rights are defined as those inalienable, inherent and natural rights guaranteed to all people of the world because they are humans. These rights are considered Universal, equal and free from any factors of discrimination. These rights protect a person’s life, dignity and safety. They are referred to as inalienable because they are rights which can not be taken away unjustly, they are inherent because, these rights are not guaranteed by government or any entity, they belong to the people only because they are existing as humans. Human rights are also considered natural and universal in nature, because they are not dependent upon any nationality, sex, race or any status. Summary of its nature, they are Inherent, Inalienable and Universal. These rights encompass of civil rights, political rights, economic rights, and supportive of social and cultural aspects of people’s existence.
Civil rights include; those rights that protects individuals from discrimination and ensure that there are equal opportunities for all persons and that all persons are treated equally before the law. Example of these rights are; the right to vote, right to a fair trial, freedom from unlawful discrimination, equal access to education etc.
Political rights are those rights that allows for the participation of citizens in the political processes of their country e.g. right to form political parties, right to peaceful assembly, freedom of speech and expression etc.
Economic, social, cultural rights are socio-economic human rights such as the right to education, housing, adequate standard of living, the right to health, victim’s rights and the right to science and culture’.
These rights are collectively considered as fundamental human rights and are subject to be protected by every government state, particularly those states which are parties to these right-specific conventions and treaties.
States have an international obligation to respect, protect and fulfill human rights on the basis of the principles of non-discrimination, which underpins all human rights treaties regardless of a migrant’s legal status or the fact that they have been trafficked or smuggled’.
States are internationally duty-bound to ensure that peoples rights are respected and protected regardless of the person’s legal status, whether lawful entry or unlawful entry, a State must protect such person because they are human and their human rights must not be infringed upon or curtailed. Though it is undisputed that states have their sovereignty and can exercise such powers over their territories including land, sea and air. However, the Recommended Principles And Guidelines On Human Rights At International Boarders maintains that:
International borders are not zones of exclusion or exception for human rights obligations. States are entitled to exercise jurisdiction at their international borders, but they must do so in light of their human rights obligations. This means that the human rights of all persons at international borders must be respected in the pursuit of border control, law enforcement and other State objectives, regardless of which authorities perform border governance measures and where such measures take place’. States are obligated to respect, protect and fulfill human rights while exercising territorial powers over its land, sea and air.
Key words:
Human rights, ICCPR, ICESCR, UNCLOS, SOLAS, Stateless persons, Protection, Respect and Fulfillment. Transnational Organized Crimes, Asylum Seekers, Statelessness.
Introduction:
India is not a signatory to the 1951 Refugee Conventions but India acknowledges the principle of Non-refoulement through papers. This can be seen under the Illegal Immigrants Act, 1946 which regulates the presence of foreigners in the country also, the provisions under Article 21 (right to life, and personal liberty is extensive to foreigners as well.
The 1951 Refugee Convention (Conventions Relating to the Status of Refugees) is a United Nations treaty that defines who is a refugee and outlines the rights of refugees, as well as the responsibilities of states to grant them asylum. This treaty established a framework for protecting individuals who have been forced to leave their countries due to well founded fear of prosecution.
Research Methodology:
This paper is of exploratory nature and the research is based on both primary and secondary sources that focus on analyzing and explaining the ways in which human rights are protected in the context of illegal sea migration of stateless persons, illegal migrants, or displaced individuals. The primary sources of this paper are from international conventions, protocols and treaties, whereas the secondary sources of the information contained herein from journals, articles and websites.
Review of Literature:
Protecting illegal sea migrants in India is a complex issue, India focuses on its national security alongside humanitarian obligations, although the country has rectified some international conventions and ha taken cognizance of fundamental human rights applicable to all individuals, including refugees, Government of India actions are often dictated by the country’s domestic laws and its security concerns thus leading to a mix of protection and restrictions relative to illegal migrants entries. As put by the United Nations Refugee Agency;
India is not party to the 1951 Refugee Convention or its 1967 Protocol and does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighbouring States and respects UNHCR’s mandate for other nationals, mainly from Afghanistan and Myanmar’.
The decision of India, not to sign to these treaties came from concerns about potential limitations on its sovereignty and security, as well as the narrow definition of the term “refugee” in the convention. Although not being a signatory to the convention, India allows the United Nations High Commission for Refugees UNHCR to function within its boarders since 1981.
The UNHCR (UN Refugee Agency) India
The UN Refugee Agency plays a crucial role in protecting and assisting refugees and asylum seekers, primarily through registration, Refugee Status Determination RSD and promoting self-reliance. The agency works along with Government of India, non-governmental organizations and other stakeholders to address the needs of refugees, including education, livelihood and their access to basic services.
What is Non-refoulement?
The Principles of non-refoulement being the cornerstone of international refugee law ensures that refugees are not forcibly returned to a country where they face prosecution or other serious human rights violation. This principle aims to protect individuals from imminent harm, particularly torture, inhumane or degrading treatment, and threat to their life or freedom, due to their race, religion, nationality, membership of a particular social group, or political opinion.
India upholds this principle through the interpretation of Article 21 (right to life and personal liberty) and obligations under International law. Meaning that India is generally expected not to forcibly return individuals to situations where their rights, life or freedom would be threatened.
Challenges in Indian context:
India lacks specific domestic legislation that defines ‘refugees’ and outlines procedures for asylum and protection. This have resulted in the interpretation and application of the non-refoulement principles being left largely to the courts and the executive discretion. The effective implementation o non-refoulement in India is challenging due to the lack of a clear legal framework, variety in its interpretation and the need to balance national security concerns with humanitarian considerations.
Global protection of illegal sea migrants:
Illegal sea migrant’s protection begins by identifying and addressing the primary cause of such migration, strengthening the search and rescue operations as well as ensuring that human rights of migrants are protected and respected throughout their journey. This process encompasses of providing safe and legal pathway for migration, fighting against migrants smuggling and promoting international cooperation. International organizations such as, the International Organization for Migration IOM ensures that all migrants, regardless of their legal status, are afforded basic human rights including their right to life, freedom form torture and their access to essential services.
Addressing the primary causes:
Identifying economic disparities and ensuring the reduction of poverty and inequalities in migrant’s countries of origin. This help to reduce the factors that drives migrants to seek opportunities in another man’s land.
International organizations must promote peace and security as well as good governance in conflict-affected regions. This action can create a more suitable environment for people to stay in their own countries. International organizations must address the adverse impact of climate change on livelihood including displacement. This action can reduce the number of people migrating due to harsh environmental conditions.
How are search and rescue efforts strengthened for illegal sea migrant’s protection:
International organizations must enhance collaboration between countries and other organizations to coordinate the search and rescue operations at sea. There must be an established protocol for rescue operations inclusive of disembarkation procedures, and such protocols must ensure that those recued migrants are treated fairly and that their fundamental human rights are well respected and protected. International laws, protocols or conventions covering illegal sea migrant’s human rights protection must covered at least: the migrant’s protection at sea, rescue at sea, ensuring that they are taken to a place of safety, their distress at sea as well as the interceptions made by states at sea.
Protection at Sea: what does it mean?
This begins with preventing the loss of life at sea. This concept ensures that sea migrants’ safety and their wellbeing is giving due attention during perilous journeys particularly crossing international waters without proper documents. It is rooted in international law including human rights law, maritime law and humanitarian law that obligates states to rescue those in distress, provide for them a place of safety and respect their fundamental rights. As put by the UNHCR High Commissioner’s Dialogue on Protection Challenges: Protection at Sea…
“refers generically to the protection of refugees, asylum-seekers, stateless people and migrants travelling irregularly by sea”. Most broadly speaking, UNHCR’s Global Initiative on Protection at Sea has two overarching objectives:
- to limit loss of life at sea as well as exploitation, abuse and violence experienced by people travelling irregularly by sea; and
- to establish protection-sensitive responses to irregular mixed movements by sea”.
Rescue at sea: is any operations to retrieve persons in distress and provide initial medical or other need to deliver them to a place of safety. This requires shipmasters to assist those in distress regardless of their nationality or legal status. Such operations are guided by; the Brussels Convention on Assistance and Salvage at Sea, the International Convention on Maritime Search and Rescue
Place of Safety: refers to any place where the migrant’s rights and his life is no longer threatened. It is that location where sea rescue operations are considered completed, the survivor’s safety of life is no longer threatened and is basic human need are well met.
Distress at sea: refers to that situation wherein there is a certainty that a person, a vessel or other craft is threatened by grave or imminent danger and thus requires immediate assistance.
Interception at sea: refers to ‘all measures applied by a State, outside its national territory, in order to prevent, interrupt or stop the movement of persons without the required documentation crossing international borders by land, air or sea, and making their way to the country of prospective destination’. Collectively, these five measures are referred to as the Maritime Search and Rescue SAR and protection of migrants at sea.
Conclusion:
As all persons are entitled to the protection their fundamental human rights regardless of any factor of discrimination, likewise all persons inclusive of illegal migrants whether sea migrants or land migrants are collectively covered under the Universal Declarations of Human Rights UDHR. To address the growing challenges of illegal sea migrants in India as a nation signatory to the Universal Declarations of Human Rights, 1948, the United Nations Convention on Law of the Sea UNCLOS since 1995, and subscribes to some human rights conventions and protocols, It is crucial that India adopt a comprehensive legal framework (domestic legislation) which interprets how non-refoulement are applied. The country must ensure the fair and efficient legal processes for asylum seekers, stateless persons or other displaced individuals and while strengthening its boarder, the country must ensure that the principles of non-refoulement is effectively and efficiently upheld.
References:
International Organization on Migration IMO
https://publications.iom.int/books/protection-migrants-sea
Archives and records | UNHCR US
Collecting and maintaining archives can pose special challenges for an organization like UNHCR.
https://www.unhcr.org/us/about-unhcr/who-we-are/history-unhcr/archives-and-records
Proposal for a regional cooperative arrangement ensuring predictable disembarkation and subsequent processing of persons rescued-at-sea
Resolution MSC.167(78), Guidelines on the Treatment of Persons Rescued At Sea|page 8
https://www.refworld.org/legal/resolution/imo/2004/en/32272
UNHCR Resettlement Handbook|pg 3
https://www.acnur.org/sites/default/files/legacy-pdf/46f7c0ee2.pdf
