Immigrants at the Gates
Should there be a right to shelter?
Jeroen Bijvoet
Student number: 10178899
jeroen.bijvoet@student.uva.nl
Master: Public law; Constitutional and Administrative Law
Supervisor: mw. dr. C.M. Zoethout
Professor of Comparative Constitutional Law Faculty of Law, University of Amsterdam
Introduction... 3
Chapter 1: Historical evolution of human rights... 6
-1. Philosophical background of human rights... 6
-2. National development of human rights... 7
-3. International human rights... 13
-4. Final remarks on human rights development... 16
Chapter 2: Duty to provide shelter?... 17
-1. International Refugee Law... 17
-2. Human Rights Law and refused asylum seekers... 21
Chapter 3: Towards a real Right to Shelter?... 25
-1. Developing a new right to shelter... 25
-2. Problems surrounding the creation of this right to shelter... 26
Conclusion... 29 Bibliography... 31 Treaties:... 31 Jurisprudence:... 31 Institutional Documents:... 32 Literature:... 32
-Introduction.
Following the revolutions and uprisings of the Arab Spring, Europe is confronted with a major influx of immigrants, who fled from warzones in Africa and the Middle-East to find safety and stability in Europe. In 2015 nearly one million people have risked their lives in an attempt to cross the Mediterranean to find shelter in the safety of Europe. They enter the European Union for the most part in Greece from Turkey and in Italy from Libya. The immigrants hope to find refuge in Europe, but this is not necessarily what awaits them.
Ever since the beginning of the so-called European migrant crisis the European Union has been incapable to deal with the influx. At first, Greece and Italy were reminded of their responsibility under the Dublin III regulation, which states that the country where people enter the territory of the EU must register them and process them. In other words, Greece and Italy were under an obligation to deal with the registration of the immigrants and check whether immigrants had a right to stay based on the fact that they were refugees or should not be granted temporary or permanent residence in Europe. Italy and Greece were not capable to deal with the thousands of immigrants that arrived from Asia or Africa. The reluctance of the other Member States to act and ease the burden of Italy and Greece resulted in a massive movement of asylum seekers, who illegally moved from their country of entry, to western and northern Europe to seek a better future there.
This second phase of the migrant crisis was not met with a joint and comprehensive approach from the EU or its Member States, but with many different regimes that blocked the migrants’ path from Greece to western or northern Europe. Where the German Chancellor proclaimed that it was the moral obligation of Germany to help those seeking refuge, the Hungarian government did the opposite by placing a fence on the border, preventing migrants to enter the territory of Hungary. As a result of this diversity in policies migrants are forced to spend days or weeks without any form of certainty about their future in Europe, often spent outside with only little protection against the elements.
The American NGO Human Rights Watch reported about these phases of the migrant crisis of Europe in their annual reports of 2013, 2014 and 2015. Human
Rights Watch constantly reports that the European Union fails to protect the human
rights of the migrants entering Europe.1 The European Union focuses on the combating of smuggling networks instead of providing significant human rights protection to the migrants already within its borders.2
1 Human Rights Watch, World Report 2014; events of 2013, p. 431-432, Human Rights Watch, World Report 2015; events of 2014, p. 229-230,
Human Rights Watch, World Report 2016; events of 2015, p. 244-246
At present we are in the third phase of the European migrant crisis. On March, 18, 2016 the EU entered into a deal with Turkey, as the main source of migrants crossing the short distance between Turkey and the Greek islands, to stop the illegal influx of migrants into Europe. According to this deal, Turkey needs to stop the human
trafficking of migrants, done by smugglers, from Turkey to Europe. When a migrant arrives on the Greek coast, they are temporarily detained and sent back to Turkey, where the migrants can ask for resettlement to Europe.3
This solution to the migrant crisis has met with a lot of criticism from multiple
organisations. Amnesty International states that Turkey is not a safe country and that any return process to Turkey will therefore be illegal and immoral.4 The Office of the United Nations High Commissioner for Refugees has reported that the mass blanket return of migrants to Turkey goes against the obligations under Refugee Convention of 1951.5 On the 30th of March 2016 the UNHCR once again urged the European countries to do more for the Syrian refugees, stressing that the policy of mass return could never relieve the Europeans from their obligation to take refugees in.6
Besides the violation of International Refugee Law, the mass return policy would also violate International Human Rights Law, for Article 4 of the Fourth Protocol to the European Convention on Human Rights clearly states that;
“Collective expulsion of aliens is prohibited.”7
Besides this very specific article it is also possible to consider that placing people in detention and forcing them to return to a country, which cannot be called safe, is going against the prohibition of degrading and inhumane treatment. The European Court of Human Rights has often considered that the likelihood of ill-treatment of a person is enough to consider removal from the territory of a Member State to be a violation to the prohibition of degrading and inhuman treatment.8
All the criticism and problems surrounding the European handling of the European migrant crisis have triggered me to look whether there should be a State obligation to
3 Tokyay, M. (22 March 2016) “EU- Turkey refugee deal: A silver bullet?” Al Arabiya, Retrieved from http://english.alarabiya.net
4 Ibid.
5 UNCHR. (8 March 2016).“UNHCR expresses concerns over EU-Turkey plan” UNCHR; The UN
Refugee Agency, Retrieved from http://unhcr.org
6 Van Egmond, J. (31 March 2016), “VN willen dat Europa veel meer Syriërs toelaat” Trouw; de
Verdieping
7 Article 4 of Protocol 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11, Nov. 4, 1950, 213 U.N.T.S. 221. 8 This was stated in cases like;
ECtHR, Soering v. United Kingdom, 7 July 1989, Series A No. 161. (1989) 11 EHRR 439. ECtHR, MSS v Belgium and Greece, (App. 30696/09), 21 January 2011
aid the migrants within the human rights regime. I will look at the question whether there should be a right to shelter under International Human Rights Law.
In order to answer this question I will first look at the origin and development of human rights. Therefore the first chapter will start by summarizing the philosophical background of human rights, continuing with describing the extensive history of human rights development. This will be done in two steps. First I will address the national development of human rights in the 18th and 19th century and after that I will describe the internationalisation of human rights, focussing on the development of International Human Rights Law in the second half of the 20th century. With that, it will become clear that the number of human rights has expanded ever since the earliest proclamations of natural rights in the 18th century to a proliferated human rights system.
Following this historical overview of the development of human rights, the second chapter will elaborate on the issue at hand. I will look at the current European migrant crisis to explain that in the status quo there is in fact a duty to provide shelter based on several existing State obligations, which are based on International Human Rights Law. This claim will be supported with reports of international organisations and judgements of international courts, such as the European Court of Human Rights. In the final chapter I will present a possible formulation of a right to shelter and clarify whether or not this will change the current treatment of foreigners by States. I will look at the relationship of the migrant with the Host State and the effects on the already established population within the Host State to come to a conclusion regarding the treatment of migrants.
Based on all this, the conclusion will be drawn that we should come to a codification of the right to shelter. This will be based on the inner logic of such a right, which would push States to come to a further realisation of the right in time. The fact that other international obligations linked together already address this right, does not eliminate this possibility.
Chapter 1: Historical evolution of human rights.
1. Philosophical background of human rights.
The current International Human Rights Law is the product of a development that started in the seventeenth and eighteenth century. In these centuries a number of philosophers published several new theories that radically changed the opinions on how the State should be managed. These theories placed the sovereign authority of the State, the power to create law which is binding upon the members of the society, with the people living in the State. This basis of sovereign authority was different from traditional theories, which placed the origin of State authority with either God or the ruler of the State.9
These theories are mostly based on thought experiments known as ‘social contract’ theories in which people start in a natural state, without any State or legislator to bind them. The people decide however to come together on the basis of a contract in a State to find a greater amount of security and progress, which would be impossible to obtain in the natural state. The most illustrative example of the sovereign people idea can be found in Rousseau´s theory, in which Rousseau gives the legislative authority solely to the collective of the people.10 Where philosophers like Hobbes or Locke state that the people give the right to legislate to a different entity, like a dictator or parliamentary assembly, Rousseau does not hand that power over to others for each man needs to be part of the legislative procedure in order for them to be as free as they were in the natural state. Each person becomes part of the collective assembly called the ‘body politic’ in which the general will determines what legal rules are binding to the members of the social contract.
“...., each man, in giving himself to all, gives himself to nobody; and as there is
no associate over which he does not acquire the same right as he yields others over himself, ...”11
The presumption that the people of the State are the origin of any State power is based on natural rights, which humans have based on the fact that they are human. These natural rights give equal freedom to all humans within the natural state. According to Locke’s theory, people have a natural right to life, health, liberty and possession.12 Every government that is formed on the basis of the social contract should not disregard any of the natural rights of the people. If a government would violate the natural rights of the people repeatedly, the people have the right to rebel against the government and replace it with a better system of government.13
9 McClelland, J.S., A History of Western Political Thought, London and New York, Routlegde; Taylor & Francis group March 1998, p. 186-187
10 Rousseau, J.J.(edited by G.D.H. Cole), The Social Contract and The Discourses, New York, London and Toronto, Everyman’s Library 1995 p. 190-192, 227-229
11 Ibid, p. 191
12 Locke, J. (edited by I. Shapiro), Two Treatises of Government and A Letter Concerning Toleration, New Haven and London, Yale University Press 2003, p. 102
13 McClelland, J.S., A History of Western Political Thought, London and New York, Routlegde; Taylor & Francis group March 1998, p. 236-237
Based on the social contract theories the conclusion can be drawn that the people have a solid position in the State. Not merely as a legal subject, who is subjected to the will of the governing entity, but as the sovereign collective from which all State authority originates. The people are therefore of fundamental importance for the State and are in a position of power. If governing entities neglect the natural rights or freedoms of the people, the people, as sovereign authority, gains the right to correct those that govern.
Enlightened by this philosophy, several groups of individuals aimed at changing the old way of government, which was often based on a system of monarchy or
aristocracy, into a democratically legitimized government. In the 18th and 19th century several revolutions attempted to establish such new governmental systems
throughout Europe and North-America. The best known revolutions are the American Revolution, which started in 1776, and the French Revolution, which started in 1789. It is here that I start my analysis of the historical evolution of human rights, with the revolutionary constitutions that stood symbol for a new era.
“That the Rights of Man may become as universal as your Benevolence can
wish, and that you may enjoy the Happiness of seeing the New World regenerate the Old,..”14
2. National development of human rights.
From the revolutions a “New World” was born, one which embraced the ideal of human rights. In theory, each person was born free and all had the same rights, but in reality there were still many groups of individuals, who were not granted the same rights as others. The fact that human rights were declared did not change the public opinion about women, black people or about people with different religions. These groups were not granted all the rights that were supposedly inalienable.
Lynn Hunt describes how human rights have an inner logic to them, which pushes for the further realisation of universal application of human rights. Hunt explains this logic by telling about the development of human rights in revolutionary France. Hunt begins by explaining the development of equal human rights for religious minorities, like Protestant Christians and Jews, followed by the struggle for equal rights for black people and finally the even longer fight for equal rights of women. This development is summarized below in order to show how Lynn Hunt comes to the idea that there is an inner logic to human rights.
After the revolution of 1789, the new established French government gave human rights to the people, but in practice only Catholic Christian males were granted the full scale of rights and not the people.15 This can be explained by the fact that the Catholics represented 99% per cent of the French population. This does not however
14 Quote from a letter to the first President of the United States of America, George Washington, by Thomas Paine: Paine, T. (edited by R. Herder), Rights of Man, Mineola, New York, Dover
Publications, INC.1999, p. 4
15 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p. 146, 150-151
justify the fact that Protestants, Jews and other religious communities were not granted the same human rights as the Catholics.
The discussion about granting Protestant males the right to vote during the elections was a hot issue. Several Catholics held that the status of Protestants had not
changed with the revolution based on the fact that the Assembly had not yet made a law to change their status. Several Protestant supporters rebottled this reasoning by pointing to the Declaration of the Rights of Man and of Citizens, which granted equal rights to all. This universality argument became the starting point of a heated debate, because with this reasoning, rights should not only be granted to Protestants, but to Jews, slaves and women as well. That was considered to be unthinkable.
In December 1789 the decree to give Protestants and several other groups equal political rights was passed by the Assembly with a large majority support. Most of the support was based on the fact that the Protestants already held local public offices and had members in the National Assembly. The acceptance of the Protestants did not mean that the Jews were also granted equal rights, because they did not have the same religion and had their own laws within their community. Therefore Jews were not considered to be as equal as the Christians were.16
Equal rights for Jews took some time, because the various Jewish communities in France were not suppressed like the Protestants under the monarchy. The Jews were allowed to some extent to run their own affairs and even had their own courts and laws in place, giving their communities a separate status, like little nations within France. The Jews had also held public office before the revolution, but unlike the Protestants, which were considered French heretics, the Jews were considered foreigners in France.17
The different background and the independent position of the Jewish communities made it difficult for many members of the Assembly to grant equal rights to Jews. Despite the reservations to the acceptance of Jews as equals, the inner logic of human rights pushed forward and in 1791 the Jews were granted equal rights, but they had to give up their privileges, which were given during the Monarchy, in return.
“In the words of Clermont-Tonnerre;”We must refuse everything to the Jews
as a nation and accord everything to Jews as individuals.””18
The same kind of development can be seen in the development of the human rights of other races, such as black people, who were used as slaves by the Europeans. When the deputies within the new National Assembly voted on the new revolutionary constitution in March 1790, it was deemed necessary to exclude the colonies from the rights listed in the constitution. This was deemed necessary because of the fact of the differences in places, climate and products between France and the colonies.
16 Ibid, p. 155 17 Ibid, p. 155-156 18 Ibid, p. 158
This made it justifiable to have different laws.19 Whether these geographical and climate arguments were the real reason for the different treatment is something that can be questioned, considering that one tenth of the members of the National Assembly owned colonial property and therefore had an interest in the continuation of slavery.20
This refusal to grant equal rights to black people led to revolts in the colonies. Saint Domingue faced revolts in 1790 and the summer of 1791. The revolt of August-September 1791 started with the revolt of 30.000 slaves, but spread over the entire colony. The revolt started after weeks of planning and with the blessing of God, according to a voodoo priestess, who allegedly was present at the start of the revolt;21
“The good Lord who created the sun which gives us light from above, who rouses the sea and makes the thunder roar – listen well, all of you – this God, hidden in the cloud, watches us. He sees all the white man does... But this God who is so good orders revenge! He will direct our hands; he will aid us. Throw away the image of the God of the whites who thirsts for our tears and listen to the voice of liberty which speaks in the hearts of all of us.”22
The unrest led to the adoption of equal rights for free black people in 1792.23 The hope was that the free black people would side with the French colonists in the efforts to restore the order on the colonies. This did not happen and the voices for the abolition of slavery gained in strength. When in 1794 the complete breakdown of French authority in the colonies was imminent, delegates from Saint Domingue were welcomed by the Jacobin rulers. A decree that granted freedom to all slaves in the French colonies was ratified and the following was proclaimed;24
“Representatives of the French people, until now we have decreed liberty as egotists for ourselves. But today we proclaim universal liberty....”25
Where the French rebelled against the absolute monarchy of the house of Bourbon, the black slaves rebelled against the tyranny of the white race. The rebellion of the black slaves was based on the same ideological values as the French had used to justify their revolution. The rights declared in the Declaration of the Rights of Man and Citizens should also apply to humans who are not white, instead of being the
exclusive right of the white humans to hold over their fellow men.
19 Ibid, p. 160-162
20 Blackburn, R. (1991, Nov 01), “Anti-slavery and the French revolution.” History Today, 41, 19 p. 21 Retrieved from http://proxy.uba.uva.nl:2048/docview/1299036854?accountid=14615
21 Ibid, p. 21 22 Ibid, p. 21
23 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p. 162-165
24 Blackburn, R. (1991, Nov 01), “Anti-slavery and the French revolution.” History Today, 41, 19 p. 22 Retrieved from http://proxy.uba.uva.nl:2048/docview/1299036854?accountid=14615
Napoleon Bonaparte sent an expeditionary force to the colonies in 1802 to restore order. This was achieved by reinstating slavery. It would last until 1848 before slavery was finally abolished.26
Despite the fact that the struggle for rights for religious minorities and black people was difficult, they all were considered less inconceivable than equal political rights for women. Although women were granted equal civil rights, which was a massive change from before the revolution, the idea that women should have equal political rights was inconceivable. There was a strong traditional view that women had another role to fulfil than men. Where men should be politically active and debate about matters of state, women should keep themselves to their natural private functions.27 This reasoning shows a great conflict between the logic of rights and the practiced custom in French society.
Not merely the argument of ‘the natural position of the woman’ was raised, but also, that women were not yet ready to participate in the political debate. Not because of a lack of quality of the sex, but based on the fact that most women had not enjoyed any form of education before the revolution. Women were not yet educated enough to take part in the political debate.28
Lynn Hunt shows us clear examples of the development of the implementation of human rights. The ‘inner logic’ of human rights nevertheless pushes for the inclusion of all those other groups that belong to the Homo sapiens specie.29 The moment the French included the Protestants to the human rights regime, another group, the Jews, knocked on the door to demand the same treatment.30
This continuing increase of conceivability of granting human right to new groups of humans continued on in the nineteenth century. The nineteenth century also signals the beginning of the development of society from an agricultural society to an
industry-based society. The industrialisation of society created new problems for new groups. Not only was the industrial labour force still uneducated and unrepresented, but they had to work many hours for barely any payment and had to live under terrible living conditions.31
26 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p. 166-167
27 Ibid, p. 168-170 28 Ibid, p. 172-175
29 Donnelly, J., Universal Human Rights in theory and practice, Ithaca and London, Cornell University Press 2013, p. 91
30 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p. 146, 153
In the nineteenth century, human rights were used by several groups, among them nationalists and socialists, to advance their own interests. The nationalists
proclaimed that the inner logic of human rights determined that all peoples had a right to self-determination and that therefore they should be able to live in their own State.32 Nationalists criticised large nations like Prussia and Austria, which held control over parts of Poland, Hungary and several peoples on the Balkan, which groups had a right to be independent.
The socialists aimed for social and economic equality for the lower classes of society. They called the right to work and the right to a decent standard of living conditions more fundamental, than the political right of freedom of expression. The liberal political and civil rights proclaimed during the 18th century revolutions failed to address those economic and social rights, which are fundamental if you want to create an equal and just society. Another piece of evidence for the bankruptcy of the liberal human rights regime could be found in the failure to grant full political rights to women, because this created a major inequality in society.33
Socialist Karl Marx condemned the revolutionary rights as being instruments of the bourgeois, the rich upper class of society, because the individualistic nature of the rights would alienate citizens from each other. Citizens had to give up that what made them human, namely one’s passions, cultural distinctiveness and material needs, in order for them to participate as rational individuals.34
These new groups became part of the initially liberal movement for reforms. This can be shown by looking at Europe in the year 1848, when there were several uprisings in several European States. In these uprisings we see the traditional rights
movements, but also elements of the new groups and the interests they represented.35
In February 1848 a revolution started in Paris, which was successful in driving the sitting monarch of France, Louis-Philippe, from power and drafting a new national constitution. The revolutionary forces behind the revolution were mostly liberal
movements, but it cannot be denied that there were socialist elements as well. This is shown by the inclusion of two socialists in the new government, namely a socialist author Louis Blanc and a worker named Albert.36 The new government also
introduced a new right, the right to work, which led to the opening of national workshops to combat the high unemployment in the major cities of France.37
32 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p.181-184
33 Ibid, p. 197-199
34 Ford, R.T., Universal rights; Down to Earth, New York and London, W. W. Norton & Company 2012, p. 23, 46-47
35 Anderson, M.S., The ascendancy of Europe;1815-1914, Essex, Pearson Education Limited 2003, (first ed. 1972), p. 90
36 Ibid, p. 90 37 Ibid, p. 90-93
Although this right to work was revoked in June later that year, the fact that it became part of a new constitution shows the pressure of the socialist movement on the lawmakers to include the improvement of the living conditions of the poorest of society into the task of the new government.
Other uprisings in Europe had more nationalistic elements to them. The most clear example is the revolution in Hungary of March 1848. The Hungarian revolution of 1848 was led by the desire of an autonomous Hungary. Hungary was part of the Austrian or Habsburg empire, but the Hungarians claimed their right to autonomy and self-determination. This revolution was relatively successful, which resulted in a well organised defence in the following war for independence against the Habsburg empire. The Hungarian dream was crushed in December 1849 when the Hungarian government fled the capital of Pest, which allowed the Austrians to reclaim
Hungary.38 Although not successful in the end, the fact that Hungary had been independent and was able to hold the Austrians off for more than a year, proved to the Hungarians that they had a right to self-determination, which would undermine the functioning of the Habsburg empire until its downfall in 1918.
Pressured by these kind of groups, the human rights regime did not only expand the inclusion of civil and political rights to the lower class and uneducated males and eventually females, but added a new category of rights as well. In the second half of the nineteenth and beginning of the twentieth century there was an increase in economic and social rights. These human rights aim to provide a minimum level of security for the poorest of society by granting rights such as the right to health care, safe working conditions and protection against certain forms of child labour.39
Development of human rights at the national level continues with the continuing inclusion of new groups, such as homosexual, transgender and religious minority groups. Also the implementation of the equality between man and woman continues to develop towards full equality of sexes.40 Although this development is fascinating, it not necessary for this thesis to describe it, for it is merely the continuation of the development already described above. The twentieth century brought another
change to the world, for it marked the beginning of a new human rights regime on the international level, which generated new human rights and changed international law.41
3. International human rights.
The real development of international human rights started only in the twentieth century after the misery of the First and Second World War had broken the old European powers. Before the World Wars, the only human right that was actively
38 Ibid, p. 87-89
39 Ford, R.T., Universal rights; Down to Earth, New York and London, W. W. Norton & Company 2012, p. 47
40 Example; It was considered normal in the Netherlands that married women were legally considered
to be incapable of entering into contracts without the permission of their husbands, until 1957.
41 Donnelly, J., Universal Human Rights in theory and practice, Ithaca and London, Cornell University Press 2013, p. 90-91
pursued was the banning of slavery. Beside this there was humanitarian law for the purpose of protecting people in times of war and distress, but there was not any fundamental human rights protection within international law.42
With the conclusion of the Great War in 1919, the nineteenth century nationalist desires became reality, namely the dissolution of the European empires of Germany and Austria. With this the nationalist desire for autonomy became true at last for Hungary, Poland, Czechoslovakia and several Balkan States, but this was not done under the notion of a human right to self-determination, but merely as a measure to prevent such disastrous wars in the future. As a result of this forced dissolution the problem of cultural minorities became clear in the new States. With the dissolution of the German Empire, there were ethnic Germans who suddenly lived in Poland and ethnic Polish who lived in Germany. This development caused new problems within societies of discriminatory origin.43
Discrimination is a century old phenomenon, which has been a primary source for the degree of inconceivability for granting human rights to certain groups like women and black people. During the nineteenth century discrimination started to develop
focussing on nationality and race, which led to the exclusion based on ethnicity and nationality.44 The new situation in Europe after the First World War created societies with multiple nationalities and ethnicities within one State, which were ideal feeding grounds for racism and discrimination on the basis of origins. This development was dangerous for the stability of the region, which was already considered at the Paris Peace Conference in 1919, were President Wilson is reported to have said;
“nothing... is more likely to disturb the peace of the world, than the treatment
which might in certain circumstances be meted out to the minorities.”45 To resolve this issue, the peace agreements held provisions that created specific State obligations towards minorities. The States had to provide constitutional
protection to the minorities their right to life, liberty and equality before the law. This protection was to be supervised by the League of Nations, the international
organisation that was founded in 1920 to maintain world peace through collective security, disarmament and the promotion of the peaceful settlement of international disputes. Finally, the States had to make arrangements to allow members of minority groups to petition the League of Nations directly about potential infractions of the obligations.46
42 Moeckli et al. D., International Human Rights Law, New York, Oxford University Press, second ed. 2014, p. 26
43 Ibid, p. 26
44 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p.186-196
45 Moeckli et al. D., International Human Rights Law, New York, Oxford University Press, second ed. 2014, p. 26
One could state that these minority rights are human rights, but this is a questionable conclusion. After all, the obligations of the State are not based on a notion of an inherent right to a humane treatment, but is merely a measure to ensure the stability of the new States and thereby promote world peace.47 In other words, it was not an increased conceivability that minorities should have human rights, but merely a necessary tool to achieve the goal of stability and peace.
True human rights protection entered the stage of international law after the Second World War. The Second World War resulted with the death of 60 million people. More than ever before it was the civilian population, which formed the majority of the people killed. Moreover, many of the civilians were killed, among them six million Jews, merely because they were of a certain racial or cultural background.48
The Second World War showed the world what racist distinctions between humans can do to civilisation. This tragedy resulted in the renewal of the international commitment to collective security and the promotion of world peace. Symbol of this new international commitment is the new international organisation, named the United Nations, which holds human rights as one of its purposes for existence;
“To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion and...”49
Although the Charter of the UN mentioned a duty to promote and encourage human rights, there are no specific obligations or rights mentioned in the UN Charter. There are many States that desire the introduction of an international Bill of Rights next to the UN Charter.50 In order to come to an international Bill of Rights, the UN
Commission on Human Rights was instituted in 1946. The Commission quickly decided that there should be three parts, establishing the international Bill of Rights. Starting with a declaration, followed by a convention containing legal obligations, and finally a system of supervision and control. Based on this blueprint, the UN
Commission on Human Rights formulated a declaration of human rights. In 1948, the Universal Declaration of Human Rights was accepted by the UN General Assembly and with that the first international human rights document.51
It would take the United Nations 18 years before the second and third step in the establishment of the international Bill of Rights were finished. In 1966, two
conventions were open for signatures, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Convenant on Economic, Social
47 Ibid, p. 27
48 Hunt, L., Inventing Human Rights. A history, New York and London, W. W. Norton & Company 2007, p.200-201
49 Article 1, section 3, Charter of the United Nations, 24 October 1945, 892 UNTS 119
50 Moeckli et al. D., International Human Rights Law, New York, Oxford University Press, second ed. 2014, p. 30-31
and Cultural Rights. (ICESCR) It would take another ten years before they entered into force in 1976.52 Both conventions introduce their own institutions, which
supervise the compliance with the obligations found in the conventions.53
These conventions separate the classical or first generation rights, namely the civil and political rights, which were declared during the eighteenth century, and the second generation rights, which are the social and economic rights fought for during the nineteenth century.
Next to these two ‘general’ human rights conventions, the United Nations has created several other ‘specific’ human rights conventions, such as the Convention on the Rights of the Child, on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
The ICCPR and ICESCR also seem to generate a new category of rights, which are called the third generation of human rights. Where the first generation provided the political and civil rights, the second generation provided economic and social rights, the third generation adds cultural, minority and collective rights to the human rights regime.
Both of the Conventions introduce in Article 1 the right to self-determination to all peoples.54 Following this right to self-determination, the ICESCR gives other third generation rights, such as the right to environmental hygiene, to take part in cultural life and mentions the inherent right of all people to enjoy and utilize fully and freely their natural wealth and resources.55 These rights give groups the right to their own cultural identity, the right to have access to clean water and other natural resources and the right to live in a healthy environment.
Next to the development of human rights within the United Nations, there are several other international organisations that develop human right regimes in their regional context. International organisations like the African Union, the Council of Europe, the European Union and the Organization of American States have all adopted their own international human rights conventions. All human right regimes are monitored by their own supervisory institutions.
4. Final remarks on human rights development.
The development provided in this chapter shows us a constant development, which universalises the existing rights and generating new rights. This does not mean however that all human rights are codified in the same manner. The ICCPR and the
52 Ibid, p. 31
53 Article 41, International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 171 and Optional Protocol, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
54 Article 1, International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 171 and Article 1, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
55 Article 12, 15 and 25, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
ICESCR can show us an important difference in the development of human rights between the first generation and second generation of human rights. Where the political and civil rights are all codified as individual rights, which are granted to everyone, the cultural, economic and social rights are written as State obligations. The rights that were introduced in the nineteenth century gained the image of a State obligation. Nobody has the right to work as such, but the State has the duty to create jobs or provide work to the best of its abilities. A reason for this could be found in the fact that all the rights provided for by the second generation involve elements which are by their nature scarce and depended of the capacity of the State to provide it. For example, where the State can grant every person on his territory the freedom to speak their minds, the State is not able to give everybody work, simply by stating that everyone has a right to work.
The amount of work within a State is dependent of the government’s actions in areas such as taxation, the infrastructure and the educational system , but also of the availability of resources, the level of education of the labour force and the value of the products produced. This makes it impossible for a poor State to provide as much work for its citizens as a rich State. The difference in the codification of the
generations of rights can be explained on that basis, which also explains why Article 2 of the ICESCR does not demand perfection in the performance of States, but it does expect progress ´with a view to achieving progressively the full realisation of the
rights recognised in the Present Covenant.´56
Chapter 2: Duty to provide shelter?
The summary of the historical development of human rights provided in the first chapter shows us that we already have a lot of human rights. Based on national constitutional law and several international conventions we have many rights, which protect a minimum standard in the treatment of the individual by the collective and the minority by the majority. It is important to know this before answering the question whether the right to shelter should be introduced within International Law. In other words, what is the status quo? What rights do migrants have when they enter into a third country? This chapter will provide an analysis of the obligations States already have at present and show that the accumulation of those obligations already create an obligation to provide shelter to those who are in its care.
56 Shaw, M.N., International Law, Cambridge University Press, 2014, p. 222
Article 2, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
1. International Refugee Law.
The most clear obligation at this moment to provide shelter can be found in
International Refugee Law. This area of law deals with the status and treatment of refugees in countries of refuge. The term refugee can be defined in a number of ways, but within International Law the definition of the 1951 Convention Relating to the Status of Refugees is one of the most commonly used.57 The ‘refugee’ definition given in Article 1 (1,A,(2)) of the Refugee Convention is;
“...any person who:...
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”58
Any person who fits this definition should be able to find refuge in the nations, which are member to the convention.59 From this definition it becomes clear that refugee status is only given to a select group, migrants fleeing as a result of natural disasters, poverty or famine are not among them. Merely people who have a well-founded fear of being persecuted can rely on the protection of International Refugee Law.60 The civil wars in the Middle-East and Africa form an important source for the large number of migrants coming to Europe. When these people are identified and registered as refugees, they are entitled to the rights and protection demanded of States by the Refugee Convention.
Among these rights are the freedom of movement, the right to proper travel
documents and identity papers, the right to gainful employment as well as the right to housing and religious practice at least as favourable as inhabitants of those States reside in.61 Protection is provided in the form of the obligation of States to not
discriminate against refugees and the obligation not to expel refugees on the State’s territory, which would go against the obligation of non-refoulement.62
The definition of refugee is declaratory by nature, for anyone who fits the description is a refugee, whether any nation has verified this or not, but States of refuge do not accept people as refugee without a national procedure to determine for themselves
57 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137
58 Article 1 (1,A, (2)), UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137
59 All European States are member to this international treaty.
60 Hathaway and Foster, J.C. and M., The Law of Refugee Status, Cambridge University Press, DOI:
http://dx.doi.org/10.1017/CBO9780511998300, p. 362
61 Article 4, 17, 18, 19, 21, 22, 26, 27 and 28, UN General Assembly, Convention Relating to the
Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137
62 Article 3, 32 and 33, UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137
whether someone is refugee or not.63 It is not however that States are completely free in their method of testing whether someone is a refugee or not. The Office of the United Nations High Commissioner of Refugees (UNHCR) supervises the States that are member to the Refugee Convention and reports to States when they do
something that it considers contrary to the obligations created by the Refugee Convention.
An example of the supervision of the UNHCR can be found in the European migrant crisis. As was mentioned in the introduction the UNHCR has expressed its concerns about the EU-Turkey deal, because the deal results in a mass blanket return of possible refugees to Turkey, where Europe is under an obligation to provide refuge to these people.64 The European States should provide protection to these people, at least until the moment that an adequate procedure has determined who is refugee and who is not.
Another example of the UNHCR providing guidance can be found in an amicus
curiae brief that the UNHCR sent to the Supreme Court of the United States in the Stevic case, in which the UNHCR reminded the Supreme Court that not the ‘balance
of probability’ test should be used to determine whether someone is a refugee, but the existence of a well founded fear is the right criterion.65
Refugee Law is supported by Human Rights Law. Where governments try to
undermine the effective protection of refugees on their territory, the refugee can find protection under the human rights regime. The Universal Declaration of Human Rights states in Article 14(1) that everyone has the right to seek and to enjoy asylum from persecution.66 It could be claimed that this declaration has transformed the obligation of States to provide asylum to a genuine right to asylum for refugees, fleeing from persecution.67 With this, the right to asylum has become like a hybrid between International Refugee Law and International Human Rights Law.
The European Court of Human Rights has often looked at the question whether the removal of an asylum seeker from the territory of one of the Member States of the Council of Europe, even if this was based on an EU regulation, was permissible considering the migrant’s human rights.68
63 Goodwin-Gill and McAdam, G.S. and J., The Refugee in International Law, Oxford University Press, 2007, p. 51-52, 54
64 UNCHR. (8 March 2016).“UNHCR expresses concerns over EU-Turkey plan” UNCHR; The UN
Refugee Agency, Retrieved from http://unhcr.org
65 Goodwin-Gill and McAdam, G.S. and J., The Refugee in International Law, Oxford University Press, 2007, p. 56
66 Article 14 (1) UDHR,UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
67 Moeckli et al. D., International Human Rights Law, New York, Oxford University Press, second ed. 2014, p. 515
68 Den Heijer, M., “Life after M.S.S.: Unfinished Business”, 31 Neth. Q. Hum. Rts. 236 2013, p. 236-237
The EU Dublin Regulation forms the basis of the Common European Asylum System, which regulates where an asylum seeker needs to file their refugee application. The Regulation prevents multiple asylum applications in different States, because the refugee must apply for refugee status in the first EU country that is on their route. This is to prevent refugees from travelling through Europe and choosing where to make their claim, now called ‘asylum shopping.‘69
This Common European Asylum System is based on the presumption that within the European Union there is a shared minimum standard in the quality of the application proceedings and the level of protection provided to refugees, but the UNHCR has presented evidence in cases before the European Court of Human Rights that demonstrates inequities in outcomes, as well as procedures.
The European Court of Human Rights had already stressed in several cases that the practice on the reception and treatment of asylum seekers in several countries was flawed or even alarming.70 Examples of cases in which this was addressed by the Court were the cases of Mohammed Hussein and others v the Netherlands and Italy and Mohammed v Austria. The Court stated in the first case that the Italian system had ‘shortcomings’ and stated in the second case that the Hungarian’s treatment of asylum seekers was alarming.71 This led however not to the conclusion that the Netherlands or Austria were not allowed to return the asylum seekers to the EU country of entry on the basis of the Dublin Regulation.
In the M.S.S. v Belgium and Greece case, the European Court of Human Rights did judge in favour of the asylum seeker. M.S.S. had worked as an interpreter in
Afghanistan and was therefore no longer safe in his country, because the remnants of the Taliban would try to kill him. M.S.S. arrived and was registered in Greece, but did not ask asylum there. He first travelled to Belgium and requested asylum there. The European registration system (Eurodac) showed that M.S.S. had already registered in Greece and Belgium started the procedure to sent him back to Greece.72
M.S.S. tried to stop this but was in the end sent back to Greece. There he was subjected to inhuman or degrading treatment and in the end complained to the ECtHR that Greece and Belgium had breached Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.73 This Article states that;
69 Clayton, G., “Asylum Seekers in Europe: M.S.S. v Belgium and Greece”, 11 Hum. Rts. L. Rev. 758
2011, p. 759-760
70 Den Heijer, M., “Life after M.S.S.: Unfinished Business”, 31 Neth. Q. Hum. Rts. 236 2013, p. 237 71 Ibid, p. 237 and
ECtHR, Mohammed Hussein and Others v the Netherlands and Italy, App no 27725/10 (2 April 2013).
ECtHR, Mohammed v Austria, App. no. 2282/12 (6 June 2013)
72 Clayton, G. “Asylum Seekers in Europe: M.S.S. v Belgium and Greece”, 11 Hum. Rts. L. Rev. 758
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Furthermore, M.S.S. argued that Belgium and Greece had breached Article 13 of the ECHR, because the deficiencies in the asylum procedure resulted in a risk of being expelled from the European territory without any serious examination of his asylum application or access to an effective remedy. The claim against Belgium was based on the fact that Belgium had send him to Greece and by doing so had exposed him to these risks.74
The European Court of Human Rights came to the conclusion that the situation in Greece was degrading for M.S.S. and went on to state that the Belgian authorities had disregarded their obligations under International Human Rights Law and
International Refugee Law, when they sent M.S.S. to Greece without examining his complaints about the Greek asylum procedure with close scrutiny. The Court judged that;
“... it was in fact up to the Belgian authorities, faced with the situation
described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3.”75
The conclusion must be drawn that based on International Refugee Law asylum seekers must be treated conform the Refugee Convention. Based on this, any asylum seeker has a right to decent protection, which includes a right to shelter until an thorough investigation is done that determines that someone is not a refugee. In principle, those asylum seekers who are not refugee are not allowed to stay on the territory of the third State and should return to their country of origin. Do they have any rights and what kind of shelter can they demand from the State that they are in?
2. Human Rights Law and refused asylum seekers.
The debate about the rights of refused asylum seekers is a constant one, for there are a multitude of national and international interests and laws involved. On the one hand there are the States that want to expel the aliens from their territory as quickly as possible and therefore establish national laws that make this possible. On the other hand there are multiple international obligations, which state that the expulsion of foreigners is possible, but not without due consideration.
There can be no doubt that States may legitimately refuse aliens access or stay. However States need to give convincing reasons for expelling them according to
73 Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5
74 Clayton, G., “Asylum Seekers in Europe: M.S.S. v Belgium and Greece”, 11 Hum. Rts. L. Rev. 758
2011, p. 759
Human Right Law.76 Although the rights of aliens are not always explicitly stated in the human rights treaties themselves, it is considered logical that all rights that lent themselves to equal application to aliens on the territory, should indeed be applied to aliens as well. The Human Rights Committee deliberates on the position of aliens in its fifteenth General Comment, in which it stated;
“Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to “all individuals within its territory and subject to its jurisdiction” (art. 2, para. 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and
irrespective of his or her nationality or statelessness.”77
The Human Rights Committee continues by stating that there is no right granting entry or residence to aliens in the ICCPR. There are however situations in which aliens may enjoy the protection of the ICCPR even in relation to entry or residence. This could be the case when there are considerations of non-discrimination,
prohibition of inhuman treatment and respect for family life relevant in a particular case.78 Only one article in the Convention, Article 13 ICCPR, is explicitly directed to aliens, who are lawful on the territory of a State. Article 13 ICCPR states that;
“An alien lawfully in the territory of a State Party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”79
Whether an alien is lawfully in the territory of a State Party is determined by the national laws concerning the requirements for entry and stay.80 The fact that any expulsion must be done ‘in pursuance of a decision reached in accordance with law,’ makes it clear that States cannot arbitrarily expel aliens, without a proper
procedure.81
This does not necessarily mean that aliens can complain about the arbitrariness of an expulsion procedure, for the European Court of Human Rights determined in the
Maaouia v. France case that Article 6 of the European Convention on Human Rights,
the right to a fair trial, does not apply to decisions about the entry, stay and deportation of aliens.82
76 Shaw, M.N., International Law, Cambridge University Press, 2014, p. 600
77 Human Rights Committee (HRC), General Comment No. 15: The position of aliens under the
Covenant, 11 April 1986, HRI/GEN/1/Rev.9 (Vol. I), p. 1
78 Ibid, p. 1
79 Article 13, International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 171 80 Human Rights Committee (HRC), General Comment No. 15: The position of aliens under the
Covenant, 11 April 1986, HRI/GEN/1/Rev.9 (Vol. I), p. 2
81 Ibid, p. 3
“40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention”83
Other human rights, which are applicable to refused asylum seekers, can be found in the International Covenant on Economic, Social and Cultural Rights. Among them are the right to adequate housing (Article 11) and the right to the highest attainable
standard of health (Article 12).84
The Committee on Economic, Social and Cultural Rights considers in its fourth General Comment, which is devoted to the right to adequate housing, that the right to adequate housing applies to everyone in a State.85 This right therefore also applies to refused asylum seekers that are still on the territory of the Host State. The Committee continues by explaining that the right to adequate housing should not be simply seen as an obligation of the State to provide an individual with food, clothing and a roof over one’s head. No, the Committee clearly states that the right must be interpreted as providing a shelter where one can live in security, peace and dignity.86
Looking at the right to adequate housing like this brings an interesting case to mind in the Netherlands. The Dutch policy on the treatment of illegal aliens has been
condemned by the Committee of Ministers, an organ of the Council of Europe, for being in violation of Article 13 (4) of the European Social Charter, which states that the application of other sections of Article 13 must be applied to nationals and non nationals on the basis of equality, without discrimination.87 The Committee of
Ministers held that the right to shelter is a fundamental right, which is closely linked to the human dignity of each individual. The Dutch government failed to provide shelter to those aliens who were already ordered to leave the territory of the Kingdom of the Netherlands. This was a violation of the migrants right to shelter, which violated their human dignity.88
In response to this not legally binding resolution of the Committee of Ministers of the Council of Europe the Netherlands changed their policy on the treatment of aliens that could be expelled from the territory. The Dutch Government decided that every alien could get shelter in one of six shelter locations in the Netherlands, but only on the condition that they would cooperate with their expulsion for the territory of the Netherlands back to their country of origin. The Commissioner for Human Rights of
83 Ibid, para. 40
84 Article 11 and 12, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
85 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4: The
Right to Adequate Housing (Art. 11 (1) of the Covenant), 13 December 1991, E/1992/23, para. 6
86 Ibid, para. 7
87 Council of Europe: Committee of Ministers, Resolution CM/ResChS(2015)5 of the Committee of Ministers, 15 April 2015, CM/ResChS(2015)5, p. 2
the Council of Europe, Nils Muiznieks, commented on this new policy of the Netherlands;
“An unidentified number of irregular immigrants end up in destitution on the streets or in camps as they do not manage to access existing emergency shelters. The Commissioner recalls that anyone, irrespective of whether their stay in a country is lawful, has the right to an adequate standard of living for himself and his family, including adequate food, clothing and shelter.”89
Although no international court has had the opportunity to comment on this new policy, the Dutch judiciary has. The Council of State, the highest administrative court of the Netherlands, has judged on the 26th of November 2015 that this policy is still in violation of the European Social Charter and it is in violation with Article 8 of the ECHR.90 The Council of State agrees with the first instance judgement that the government is under an obligation based Article 8 of the ECHR, supported by the resolution of the Committee of Ministers, to provide shelter, food and clothing to aliens on the territory of the Netherlands. The Council also agrees that the provided shelter, on the condition that foreigners cooperate with their own expulsion, is also in violation with that same obligation.91
When looking at Article 11 ICESCR, you cannot claim that the condition that aliens need to cooperate with their own expulsion is against the human right to adequate housing, but considering the obligation read in the provision by the Committee of Economic, Social and Cultural Rights that the provision provides security, peace and dignity to people does make me question it.92 On the basis of these three elements, it would be strange to accept that someone can only get shelter, when that person completely cooperates with the authorities, for it is a human right. This is not an issue following the inability of a State to provide shelter and it is therefore not within the ‘progressive realization’ clause of Article 2 of the ICESCR, but an active denial of shelter to those who have nowhere to go.93
The Committee of Economic, Social and Cultural Rights also stated in its fourteenth General Comment that every human being is entitled to the enjoyment of the highest attainable standard of health.94 The right provided by Article 12.1 of the International Covenant on Economic, Social and Cultural Rights does not limit itself to a right to health care.
89 Amnesty International, Mensenrechten op Straat; Bed, bad, brood en de menselijke waardigheid in
Nederland, Amnesty International; Dutch branch, Amsterdam, p. 16
90 Raad van State, 26 november 2015, Case nr. 201500577/1/V1, p. 6-7 91 Ibid, p. 3
92 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4: The
Right to Adequate Housing (Art. 11 (1) of the Covenant), 13 December 1991, E/1992/23, para. 7
93 Article 2, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
94 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The
Right to the highest attainable standard of health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, para. 1
“On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of
socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.”95
This right is also something that migrants are entitled to, but we must not forget that the second generation rights are based on the ‘progressive realization’ criteria as stated in Article 2 ICESCR. The Committee recognizes that millions of people in the world do not have full access to health care and the elements needed to live a healthy life, but States cannot suddenly decrease the level of health care, food, housing, water and adequate sanitation.96 For refused asylum seekers this would mean that you cannot deny them access to health care or shelter, because they are no longer welcome on the territory.
This chapter has shown that there is already a duty to provide shelter in international Law. Where International Refugee Law provides protection to all asylum seekers until it is determined by a thorough application procedure that they are not refugees, International Human Rights Law provides protection to those who are unlawfully on the territory of a Third State.
The human rights regime gives us a brought selection of rights, which provide
protection to migrants in their Host States, among them the prohibition of torture and inhumane and degrading treatment, the right to privacy and family life, the right to adequate housing and the right to the highest attainable standard of health. These human rights create a duty to provide shelter to all on the basis of the inherent dignity of humans.
Chapter 3: Towards a real Right to Shelter?
Is this enough? When we look at the current European migrant crisis, you could say that all these obligations of States in practice do not provide sufficient protection to the migrants seeking sanctuary. European States close their territory off for migrants by building fences and walls and guard them with heavily armed soldiers and
policemen to prevent migrants from entering. The European Union expels asylum seekers from its shores in Greece to Turkey to wait for European acceptance there, where it is confirmed that Turkey sends refugees from Syria back to their homeland, which is in a horrifying civil war.
1. Developing a new right to shelter.
When we look at this reality, it would seem that a specific right to shelter can still provide the migrants with a better level of protection. The duty to provide shelter is already used by the ECtHR in relation to Article 3 and 8 ECHR and specifically mentioned by the Committee on Social, Economic and Cultural Rights in relation to
95 Ibid, para. 4 96 Ibid, para. 5
the right to adequate housing and right to the highest attainable standard of health.97 However these rights are crippled by Article 2 of the ICESCR, because States can claim that they are willing to grant everyone shelter, but do not have the resources to do so. This is possible, because of the ‘progressive realization’ clause of Article 2 ICESCR.98
In order to come to a meaningful right to shelter, it would be necessary to forge it as a civil right. In other words, formulate it as a first generation right to avoid the
‘progressive realization’ clause. Since first generation rights are formulated as being truly universal rights, the right to shelter would become more intimately connected to the source of all human rights, human dignity. This new right to shelter could be codified as follows;
Everyone has a right to shelter. No one shall be subjected to arbitrary denial of entry or expulsion from a Host State.
This formulation would be complementary to the already existing rights and rules in International Law. The proposed formulation of the right is merely meaningful to those who need shelter, for States can deny people access or stay, but this formulation makes sure that people who ask for shelter will not be denied entry or face expulsion without a proper procedure to assess their claim to shelter. This makes sure that people who need shelter can get it, without opening the floodgates for all those who merely seek economic gain.
Who can claim the right to shelter? Obviously the refugees, for they already have a strong claim to the protection of a Third State on the basis of International Refugee Law. The obligation under International Refugee Law to provide asylum to refugees makes it already unthinkable to deny people entry, because you first need to find out whether those people can claim to be refugees. The prohibition to arbitrary denial of entry should therefore not be necessary for all those States that are also a member to the 1950 Refugee Convention, but considering that International Human Rights Law should always function independent from other international obligations, it is wise to explicitly state that the entry into a country cannot be denied without just grounds.
Another group that would be able to find shelter on the basis of this right to shelter would be those who cannot be returned, because of personal circumstances. One should think about those who would be greatly harmed in their right to privacy and
97 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4: The
Right to Adequate Housing (Art. 11 (1) of the Covenant), 13 December 1991, E/1992/23, para. 7
and
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The
Right to the highest attainable standard of health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, para. 4
98 Article 2, International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
