The Intersection of Collective and Individual Child Refugee Asylum Seeker Rights

Abstract

It is here contended that respect for individual human rights is in large part predicated on, at the outset, recognition and honouring of collective human rights. Often, however, individual basic human rights are violated on a blanket basis due to the actual or perceived membership of the individuals in an identifiable collective such as a refugee collective with a defined ethnic, religious, socio-political or other group characteristic. In such cases the State focus is then on the collective and not on the individual. In fact when the State adopts such an approach, from the State perspective, the individuals in the collective, in practice, for most if not all human rights related intents and purposes, no longer exist legally. Consideration of and regard for collective fundamental human rights is, however, as will be illustrated via the refugee cases here discussed, essential in regards to refugees if the individual refugee is to be fairly treated according to international customary and jus cogens norms and relevant international treaty and convention obligations. For instance, collectives of highly vulnerable people in many cases are entitled in the first instance, and are sometimes granted, in effect if not formally, prima facie recognition as refugees in terms of entitlement to protection. This occurring then even before individual cases are assessed on their merits. Thus, for example, Bangladesh has accepted a flood of Rohingya persons (400,000 as of September, 2017), belonging to an ethnic Muslim minority group in their homeland of Burma. Thus Bangladesh has, in the first instance, regarded these Rohingya as a prima facie refugee collective comprised of individuals fleeing what has been described by the current U.N. High Commissioner for Human Rights as ethnic cleaning (by the Burmese military and certain non-State groups of different ethnicity):