Finding Protection for Refugee Culture in International Law

James Moser, Jr.
Vol. 42 Associate Editor

Humanitarian crises that provoke refugee crises also may impact the survivability of the cultures of asylum-seeking groups – particularly where they become a minority group in their new country.[1] More state involvement is necessary to protect and maintain the cultures of these refugee groups.[2] Simply avoiding doing harm to refugee cultures would not be enough -International legal norms need to enforce positive obligations on states accepting refugees to provide aid and support that help maintain the group’s culture. This is especially important since the act of migration itself can precipitate a loss of a group’s cultural identity.[3] While much of refugee law focuses on the obligations that States have to refugees as concerns basic life needs, other instruments of international human rights law suggest that States have obligations in their treatment of refugees based on how the State treats its own citizens. The Convention Relating to the Status of Refugees in particular pinpoints obligations to refugees that go beyond simply permitting them asylum.

The International Human Rights regime imposes positive obligations for protecting the culture of minority refugee groups through family and education rights, especially as regarded through the lens of minority rights.  Most of the duties States have under refugee law are best understood as negative rights which States may not take away. In fact, there are no explicit positive duties concerning the protection and maintenance of refugee culture – this express concern simply did not fall into the scope of the Convention Relating to the Status of Refugees. These regimes do, however, outline both family and educational rights which states must respect to varying degrees.  These positive obligations, working in combination with other sources of international law, create a duty to protect and maintain the cultures of minority refugee groups.

 

The Convention Relating to the Status of Refugees reflects the United Nations’ concern for the protection of refugees in the aftermath of World War II. [4] The Convention defines refugees as individuals with a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion who cannot enjoy the protection in their country of origin.[5] Under the Convention, states must afford refugees the same rights as locals in particular matters.[6] However, when it comes to the protection of refugee cultures within the state offering asylum, the Convention does not offer any particular guidance for States.

 

The Convention, however, does establish the positive right to an education and positive family rights; these rights, when combined with other rights in international law, supports the positive role states must play to protect refugee cultures.[7] Contracting states obligations in this area are threefold: first, the state must afford the same treatment as nationals as concerns elementary education; second, the state must afford rights to refugees as or more favorable than non-nationals for higher levels of education; and thirdly, states should regard refugee foreign certificates, diplomas and decrees as it would for other non-nationals.[8] A similar obligation arises under the International Covenant on Economic, Social and Cultural Rights where under Article 13 states are obliged to expand access to secondary education and higher education regardless of citizenship status.[9] The Convention on the Rights of the Child also set the standard that states should endeavor to establish free secondary education for all regardless of nationality.[10] Family rights under international law also entail certain cultural rights. Article 23 of the ICCPR establishes the international law norm that families are entitled to protection by society and the state.[11] The Declaration of the Rights of the Child and the International Convention on Economic, Social and Cultural Rights also acknowledge the importance of the family for parties to assert their rights.[12]

 

Sources of international law establishing minority rights also support the view that States have positive obligations to protect refugee cultures. Article 27 of the ICCPR plays a major role in determining each state’s obligations in international law to minorities in its territory. The article maintains that:

 

“in those States in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”[13]

 

UN organs have since expounded upon Article 27 of the ICCPR to detail how States should address minority rights within their borders. The Office of the High Commissioner for Human Rights states in the General Comment Number 23 that these rights to minority groups must be applied to both “visitors” or individuals who are not recognized as permanent residents.[14] The OHCHR thus did not intend that nationality be considered when affording rights to minority groups, which could be to the benefit of refugees who also qualify as a minority under OHCHR’s established framework. Additionally, the OHCHR emphasizes in the general comment that states have positive obligations to protect minority rights and must especially do so when change is necessary to protect minority rights.[15] Commentaries on the ICESCR have also established that states have an obligation to integrate, but not to assimilate refugees.[16] States must not assimilate through not denying education in the minority language or culture,[17] and in some cases the state would be required to act positively to protect minority group identities.[18]

 

This duty to positively protect minority group identities entails a number of positive rights which refugees can enjoy, stemming from the other rights already mentioned. With States required to protect family interests and to protect refugee access to primary education (as a minimum), States as lawmakers have already provided a means to the protection of refugee cultural rights. Viewing these refugee cultural rights through the lens of minority rights, and especially with an eye on integration and doing what is necessary to protect minority identities, demonstrates that there exists a robust framework under international law for protecting refugee cultural rights and acting positively to protect refugee cultural heritage.

 

Make no mistake, this regime tremendously expands the sphere of rights expressly accessible to refugees, particularly refugees that would form a minority group in the new state, beyond what was initially conceived in the Convention Relating to the Status of Refugees. This expansion, however, is consistent with the preamble of that document – that refugees should enjoy the “widest possible” exercise of fundamental rights in their new state.[19]  The expansion mirrors the expanded protections of all minorities.  This is consistent with the High Commissioner for Human Rights’ charge to apply rights to visitors that are not recognized as permanent residents.[20]  When a state protects minorities, this should extend to minority refugee groups.  This will provide appropriate protection for the cultures of minority refugee groups and complete the vision of refugee rights initially conceived by the CRSR.


[1] Minority groups are defined by UN materials as individuals pertaining to national or ethnic, cultural, religious or linguistic minorities. U.N. HuM. Rts. Office of the High Comm’r, Declaration on the Rights of Persons Belonging to National Ethnic, Religious and Linguistic Minorities, G.A. Res. 47/135, art. 2 (Dec. 18, 1992), https://www.ohchr.org/en/professionalinterest/pages/minorities.aspx.

[2] See Generally U.N. HUM. RTS. OFFICE OF THE HIGH COMM’R, PAMPHLET NO. 12 OF THE UN GUIDE FOR MINORITIES, https://www.ohchr.org/Documents/Publications/GuideMinorities12en.pdf.

[3] See Dinesh Bhugra & Matthew A Becker, Migration, Cultural Bereavement and Cultural Identity, WORLD PSYCH., Feb. 2005, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1414713/.

[4] 1951 Convention Relating to the Status of Refugees (CRSR), Preamble, Jul. 28, 1951, 189 U.N.T.S. 137.

[5] Protocol Relating to the Status of Refugees art. 1, ¶ 2, Jan. 31, 1967, 606 U.N.T.S. 267.

[6] CRSR, supra note 4, art. 14-16.

[7] Id. art. 22.

[8] Id.

[9] International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 13, Dec. 16, 1966, 993, U.N.T.S. 3.

[10] See Convention on the Rights of the Child Article 2 (no discrimination) and Article 28 (rights to education) Convention on the Rights of the Child, art. 2, art. 28, Nov. 20, 1989, 1577 U.N.T.S. 3.

[11] International Covenant on Civil and Political Rights (ICCPR), art. 23, Dec. 16, 1966, 999 U.N.T.S. 171.

[12] ICESCR supra note 9, art. 10; CRC supra note 10, art. 16.

[13] ICCPR supra note 11, art. 27.

[14] General Comment 23, 5.1-5.2 U.N. HRC, CCPR General Comment no. 23: Article 27 (Rts. of Minorities), ¶¶ 5.1-5.2, CCPR/C/21/REV.1/ADD.5.

[15] Id. ¶ 6.2.

[16] U.N. Sub-Commission on the Promotion and Protection of Hmn. Rts., Commentary of the Working Group on Minorities to the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, art. 21, Apr. 4, 2005, E/CH.4/Sub.2/AC.5/2005/2.

[17] Id. ¶ 28.

[18] Id. ¶ 29.

[19] CRSR supra note 4, Preamble.

[20] Supra, note 14.

The views expressed in this post represent the views of the post’s author only.

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