‘All for one or one for all?’: The Complexity and Conflicts of Individual and Collective Rights and Refugees

By Christina Brickle

With the attention of the media captured by another refugee crisis, one that is having an impact on global consciousness, it is an interesting time to reflect on the evolving rights of refugees and the obligations of state.  John Peters Humphrey, the author of the first draft of the United Nations’ Declaration of Human Rights, did just this in his speech in Florence, Italy in June 1984. Overtly, this speech was about the proposed change in legislation (Bill C-55) that would allow Canada to deny the entry of refugees if they came from a country, that was not their own, that was deemed ‘safe’ by the Canadian government. More subtly, however, Humphrey linked ideas of exclusion and the avoidance of international responsibilities for refugees to domestic motives with an analysis of refugee rights as a reflection of the superiority of individual rights over collective rights.

The plight of asylum seekers was at the forefront of the people’s minds after World War II and was discussed and analysed during the post-war human rights ‘revolution’.  The U.N.’s Universal Declaration of Human Rights, which outlines the rights and freedoms that are afforded to all humans, includes “the right to seek and enjoy in other countries asylum from persecution” (Article 14).[1] The U.N.’s 1951 Convention Relating to the Status of Refugees furthered the rights of refugees, creating international obligations regarding the admission and treatment of refugees. For Humphrey, this was crucial because it “addressed the rights of the individual versus the obligations of states.” Since the majority of rights are upheld by governmental regulation, if a state could not, or would not, protect an individual, then it was up to the international community to do so.

The nation, however, creates exclusion; by defining who is a citizen, it is also defining who is not. The relationship between states, citizenship and rights is complex. An independent, sovereign state is a collective right – with border control for the benefit of citizens as a central premise. This can both create (via government enforcement of rights) and compromise (via placing the state’s or citizen’s needs above humanities’ needs) many individual rights.[2] Previously, most rights and protections afforded to people were created by nations and granted by citizenship – or as Humphrey put it: “traditional international law recognized only states”. This meant that if your rights were not given or protected by country in which you were living, there was no other protection available to you. Before and during World War II, there were no obligations to refugees. Therefore the rights outlined in the Declaration and the Convention were crucial because they placed individual rights above the group rights of a state and allowed “individuals [to] have personality under international law.”

For Humphrey, this was truly a “rights revolution”.  The concepts outlined in the 1951 Convention were a “deviation from the principle that a sovereign country has absolute control over who is permitted to enter its borders”. This was an amazing step to put the rights and needs of certain people above the very politically ingrained idea of sovereignty and border control. Unfortunately though, the easy dismissal of individual rights and international obligations for domestic political concerns soon became apparent in how nations, including Canada, responded to refugees.

In 1984, Humphrey was concerned about the laws and regulations that the Canadian government was introducing to legally limit and select the refugees because it was again placing the needs of the nation above the rights of an individual. Humphrey criticised the Canadian government for trying to “select [refugees] according to our interests”. Selection based on state interests implied that the intake of refugees would come at a cost to the citizen (group). While the Convention Relating to the Status of Refugees recognised that “burdens on certain countries” were created by an intake of refugees, it did not cite this as an excuse for rejecting refugees.[3]

Humphrey’s insistence, revealed in his speech, that refugee cases should be heard on a case-by-case basis is also rooted in his ideas about the rights of the individual. He believed that all asylum seekers (claimants) should be heard by a third party tribunal. This right seemed  doubly as important in the wake of Bill C-55.  He highlighted the idea that to fairly determine whether or not a country is safe for a refugee (and it could differ for every person claiming asylum) required a similar process of scrutiny for deciding if a person was a refugee or not. Therefore the bill that was introduced in 1984 was creating a ‘middle man’. Humphrey also worried that it was not going to be enacted in a just manner.

The conflict and commonalities between individual rights and collective rights are never simple. Some scholars, like Humphrey, believe that the rights of the individual always supersede those of the collective. The emphasis on the individual in the asylum seeking process is crucial, however, because often people are denied collective rights via non-membership or non-citizenship. For compassionate and ethical treatment of refugees, we must treat them as individuals and allow for “personality” to been seen under international law.


[1] United Nations General Assembly, Universal Declaration of Human Rights, 1948, http://www.un.org/en/universal-declaration-human-rights/.

[2] Aryeh Neier, The International Human Rights Movement: A History, (Princeton, N.J.: Princeton University Press, 2012), 66.

[3] United Nations High Commission into Refugees, Convention and Protocol Relating to the Status of Refugees, 1951, http://www.unhcr.org/3b66c2aa10.html.

 

 

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