Extraterritorial human rights obligations to protect refugees

by: in Law

It took quite a while before the European countries realized and recognized that the influx from asylum-seekers via the Mediterranean Sea and Turkey into the European Union is not just a matter of controlling the outside borders of the Union, but also a humanitarian and human rights issue. Some European member states, such as Hungary, blocked borders to prevent asylum-seekers from entering. The government of Denmark has advertised in newspapers in Lebanon to discourage refugees from Syria to come to Denmark.

During the first months of 2015, FRONTEX, the EU agency in charge of border management, through its Titron Operation on the Mediterranean, was focused primarily on border control, instead of searching and rescuing people who were in distress. In my opinion, the current refugee crisis in Europe does not only raise humanitarian concerns and moral responsibilities, but also legal obligations arising from human rights treaties and EU law. In addition to the Refugee Convention which contains obligations to grant asylum and of non-refoulement, all European states are parties to the European Convention on Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

These conventions contain, inter alia, duties to respect human dignity, the right to life, food, shelter and health. In addition, Article 2 and 3(5) of the Treaty on the European Union state very clearly that the EU is based on respect for human dignity and human rights and that it will contribute to the protection of human rights in its relations with other countries. It is increasingly being recognized that protecting human rights in an era characterized by globalisation can no longer be seen as a domestic or territorial issue only. Human rights problems are a matter of international concern from which countries cannot isolate themselves. Civil war in one country may lead to movement of people across borders from which one cannot look away. Such situations may trigger extraterritorial human rights obligations.

The legal basis for such obligations can be derived from existing human rights law. They have been clarified in the so-called Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights [2011] (for the full text see: www.etoconsortium.org   ). This authoritative expert opinion defines extraterritorial obligations as:

a) obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and

b) obligations of a global character that are set in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally (Principle 8).

It is submitted that blocking borders to refugees in distress, preventing people from seeking asylum, or sending people back to Libya who are at risk on the high seas in unsafe boats is contrary to extraterritorial human rights obligations of states. Instead, in terms of principles and priorities in cooperation aimed at fulfilling human rights extraterritorially, states must prioritize the realisation of the fundamental rights of vulnerable groups. These include providing them with relief, shelter and food for the protection of their dignity. Such action would be in accordance with UN Charter obligations to realize human rights universally.

  • A.P.M. Coomans

    Prof Fons Coomans holds the UNESCO Chair in Human Rights and Peace at the Department of International and European Law at the Faculty of Law, Maastricht University. He is the Director of the Maastricht Centre for Human Rights, and a member of the Netherlands Network for Human Rights Research.

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