Download Populations on the Move: The normative context of international

Populations on the Move: The normative context of international protection
Petros Mastakas
Associate Protection Officer,
UNHCR Greece*
Public international law deals with ‘populations on the move’ within the broader notions of “nationals”,
“aliens” or the recently created notion of “internally displaced persons” (IDPs). Aliens may further be
divided into “migrant workers”, “legal aliens”, “irregular aliens”, “refugees”, “stateless”, “seamen”,
“trafficked persons” and “smuggled persons”. The category of EU citizens is a sui generis case.
States have undertaken commitments to uphold specific levels of protection (different for each category)
by adhering to a complex and continuously evolving nexus of conventional and customary norms of public
international law. The notion of ‘international protection’ itself remains largely controversial: It implies a
set of measures and actions ranging from reduced requirements for admission into a State’s territory to
the absolute prohibition of “refoulement”(i.e. the return of a person to a country where his/her life or
freedom might be at risk).
The primary responsibility to protect lies with the State, be it the State with which individuals are related
with the bond of ‘nationality’, the host State (in the case of refugees) or the State of habitual residence (in
the case of stateless persons).
On certain occasions, international organizations (such as UNHCR), depending on their mandate, or other
States (substituting for those States who are unable or unwilling to discharge their primary responsibility
to protect) may provide protection and assistance.
Necessarily, international protection derives its content from international human rights law. States have
committed to abstaining from certain actions or engaging in actions so that certain objectives are
achieved. A “catalogue” of human rights, applicable in all human beings and which almost all States have
committed to adhere to, is enshrined in the two 1966 Covenants (the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights). A study of
international human rights law reveals that the broader the scope of application of an international
human rights instrument, the vaguer and less clearly defined the protected rights and vice versa
One of the most advanced paradigms of international protection is this of refugees. Those who meet the
criteria of the refugee definition enshrined in the 1951 Geneva Convention on the Status of Refugees and
its Additional 1967 New York Protocol are entitled to a rather extensive set of rights and are treated as
nationals of their host country (in respect of the exercise of a number specific rights recognized to them).
To highlight the degree of advanced protection afforded to refugees (as opposed to other categories of
aliens), one could highlight the issue of medical care. Article 24 of the 1951 Geneva Convention stipulates
that refugees are treated in the same way as nationals in respect of social security matters such as, inter
alia, employment injury, occupational diseases, maternity, sickness and disability.
On the other hand, article 12 of the International Covenant on Economic, Social and Cultural Rights
foresees the right of everyone to the highest attainable standard of physical and mental health. However,
this right produces limited legal effects for individuals as it only imposes upon States an obligation to take
action progressively and not to achieve a clearly defined standard of medical care available to all.1
 The views expressed are strictly personal and do not necessarily reflect the views of UNHCR