Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

Abstract

The European “refugee crisis” of today may lead to tomorrow’s integration difficulties. The large-scale influx of refugees has brought and is bringing many who, unless the situation in their countries of origin improves, will most probably have to remain in their country of asylum. With this in mind, policies in the coming years must provide for a smooth integration of these individuals if society is to function well and if the European peoples’ centuries-old claim of respecting human rights is to be maintained. Indeed, integration is about a wide range of factors: sociology, psychology, politics, and economics, but the law is also a force for integration. In that sense, human rights, and in particular fundamental social rights, are powerful tools. The right to education, the right to work, the right to housing and the right to health are crucial in the integration process. Being human rights, they are universal and, consequently, refugees must enjoy them too. Statements declaring universal social rights can be found in general human rights treaties, signed at United Nations (UN) level, regional or sub regional levels. In Europe, in addition to the application of the International Bill of Rights, there are relevant regional norms, set out by the Council of Europe (CoE) and the European Union (EU). The European Convention on Human Rights, the European Social Charter, and the Charter of Fundamental Rights of the European Union are each legally binding in the participating European states. There are also specific norms that exist for refugees that provide for their social rights. The cornerstones of international refugee law are the Convention relating to the Status of Refugees of 1951 and its 1967 Protocol (Geneva Convention), possibly soon to be completed by soft law, with global compacts on refugees and for safe, orderly and regular migration. These are elaborated on further by the EU through several directives and regulations that comprise the Common European Asylum System (CEAS), soon to be reformed. All of them create “ladders” in the access to certain social rights. States’ sovereign attribution of permits to remain while waiting for examination of asylum requests, a right to asylum subsequent to recognition decisions, or the passage of time spent lawfully in the country are all “steps to climb” to access further rights. The right to asylum, in the form of a permit to remain and live in the country among nationals, is thus the key to full enjoyment of social rights. Certain doctrine vigorously advocates automatic delivery of asylum right to a person as soon as his or her situation corresponds to the international protection status criteria defined in refugee law. Such an automatic delivery of residence permit would be a response to their need and exactly correspond to the main purpose of international protection status. This, however, is not the case in practice in many countries, and refugee law it-self leaves room for states to maintain competence on their right to stay. The margin of appreciation of authorities is wider or more restrictive depending on supranational norms (as long as refugees are not sent back to a country where they would be at risk of persecution, according to the non-refoulement principle). Denying this state of fact can be a way to develop opinio juris on an obligation to declare asylum rights to persons in need of international protection and thus makes it become a norm of customary law. However, refugee law and certain state practices appear to be too far apart for now, to only work with this long term strategy. Today, the fundamental social rights of persons in need of international protection continue to be subject to their particular migration status. The acknowledgment and confrontation of this problem is necessary for identifying efficient solutions in a shorter period of time, and doing so with the help of already existing legal tools. This aspect of the law must be placed under the spotlight along with the negative effects this has for social cohesion. The issue here at stake is of great importance for the protection of refugees’ fundamental rights’ protection. The parallel existence of universal human rights – granting social rights to every human beings – and specific refugee laws – subordinating refugees’ access to social rights to states’ decisions – results in a difference of treatments between human beings. Moreover, combining general human rights treaty obligations and specific asylum norms is sometimes a challenge for European states, because of the inconsistencies between the two, which are going to be discussed in this article. These inconsistencies can be partially historically explained by the fact that the Geneva Convention stated binding norms, in particular to open access for refugees to national protection systems of social rights, before the aforementioned human rights treaties came into force. However, in the present international legal order, these inconsistences cause legal issues and jeopardize refugees’ integration. These elements call for reflection on a need for harmonization. The harmonization of human rights law with refugee law may be pursued by finding ways to apply refugee law and, at the same time, guarantee fundamental rights to everyone. Social rights, as defined in human rights law (at the UN level in the International Covenant on Economic, Social and Cultural Rights (ICESCR), at the CoE level in the European Social Charter and at the EU level in the Charter of Fundamental Rights, as well as social rights interdependent from rights declared in the International Covenant on Civil and Political Rights (ICCPR) at the UN level, in the European Convention on Human Rights (ECHR) at the CoE level, and other rights contained in the Charter of Fundamental Rights of the EU), should be protected by states parties when they apply refugee norms also in force on their territory (such as the Geneva Convention and the CEAS for EU member states and associated third countries). Harmonization can be pursued using existing available legal tools or, more precisely, one principle in particular: the non-discrimination principle. Once again, the equation to solve is the following. Human rights are universal; accordingly, refugees are entitled to them. However, subsidiary rules create derogations from effective universality, allowing sovereign power of states to weaken universality. The non-discrimination principle can solve this equation by obliging states to combine universal human rights with refugee law, applying the latter while respecting the former. Provisions on the prohibition of discrimination offer, indeed, a powerful principle for addressing the issue: by advocating for broader access to social rights for refugees in comparison to nationals, but also between the different statuses that can be attributed to them. Given that what is needed is already set out by human rights law, the harmonization considered in this context simply demands the application of existing norms, by advocating for equality before judges and executive powers. However, harmonization should not lead to ignorance of the specific situations of persons in need of international protection. Their vulnerability has to be taken into consideration, as do their special needs. Access to social rights and their effective exercise is harder for vulnerable persons; supporting refugees to actually enjoy their rights is necessary to empower them to participate in their new society. In this article, I will describe the legal framework applicable to refugees and study the possibilities offered by the non-discrimination principle. I will start with the following statement of fact: while human rights belong to every human being under the jurisdiction of a state party to treaties declaring them (part I), refugee law opens rights to refugees according to their migration status (part II). Consequently, refugees do not enjoy all social rights at any time. There are holes in the protection of their fundamental rights (part III), sometimes challenging their integration in their host society. However, I will demonstrate that the non-discrimination principle forbids states from excluding them from their national system under which social rights are guaranteed. This principle allows for the correction of gaps in the protection of refugees’ social rights and, thus, enables a harmonized application of human rights law and refugee law (part IV).