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HUMANITARIAN LAW AND IMMIGRATION LAW: A COMPARATIVE STUDY

INTRODUCTION

‘Article 1’ of the Montevideo Convention defines the state “as a person of international law who should possess the following qualifications – a permanent population, a defined territory, and the capacity to enter into relations with other states”[1].In a nutshell, we can conclude that among the most crucial components of a state is its subjects hence, it becomes vital for the state to establish what proportion of its population will qualify as permanent citizens and what mechanism will be utilized to identify the emigrating inhabitants as legal citizens. People have traditionally migrated from one area to another in quest of a better living, educational opportunities, or, in some cases, shelter. As a result, in such cases, immigration regulations come to the rescue as they specifically outline the method for entering a country. People make the decision to immigrate based on the opportunities and lifestyles that await them once they arrive in another territory. Social standards too play a significant part in this since they explain the rights, freedoms, and quality of life that the native people cherish. Thus, the conflation of immigration and humanitarian laws plays a pivotal role in the process of migration and maintaining the relationship with other states.

HUMANITARIAN LAW

International humanitarian law prescribes a code of conduct governing the resort to force (“Jus Ad Bellum”) and the conduct of the hostilities (“Jus in Bello”). These principles are applied in cases relating to ‘the treatment of prisoners of war, civilians in occupied territory, sick and wounded personnel, prohibited methods of warfare, and human rights in situations of conflict.’[2]Initially, the laws on International Humanitarian law were addressed as the laws of the war and thereafter as the laws of the armed conflict. International Humanitarian law derivates from various international conventions and some of these conventions draw their sources from customary international practices it would not be wrong to say that these customs are placed above the conventional rules. International Humanitarian Law is the only branch of international law that has been highly codified. In present times a large portion of humanitarian laws including the laws in cases of armed conflict including the laws relating to fundamental human rights is governed by the ‘Universal Declaration of Human Rights as well as the ‘Geneva Conventions’. ‘The Universal Declaration of Human Rights’s an exhaustive international framework on Fundamental Human Rights which applies to various nations. Immigration law is also governed by the principles enshrined under the UDHR, particularly concerning cases relating to refuge and asylum.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

The UDHR is the foundation stone of the international framework in Fundamental Human Rights which was passed by the United Nations General Assembly unanimously in 1949. It is a living document that exhaustively mentions the fundamental human rights to that every living person is entitled. The UDHR is a guiding torch on humanitarian laws. It guarantees every person ‘the right to life, liberty, and security; it prohibits discrimination on various grounds; it guarantees equality and equal treatment; it permits persons to seek refuge in another country from persecution and covers every aspect of humanity[3].

GENEVA CONVENTION: MODERN SOURCE OF INTERNATIONAL HUMANITARIAN LAW DURING ARMED CONFLICTS

‘The Geneva Convention’ is a consolidation of those international rules which attempts to limit the barbarity of war and protects people struck in situations of war. The conventions have bifurcated the parties to a war situation and further categorizes people as those who do not take part in the fighting which comprises civilians’ medics and aid worker; the second set consists of the parties who can no longer participate in the war that is ‘the wounded, sick and shipwrecked troops and the prisoners of war’. [4]

The Geneva convention safeguards the interest of all the affected parties in an armed conflict. As the parties are those civilians who are adversely affected by the war or the medical staff that assists not only the soldiers who are affected because they were safeguarding the sovereignty of the state but also those civilians who need medical care. Or whether it is the prisoners of war, the ‘Geneva Convention mandates that all these persons who are the parties to an armed conflict are meted out with a humanitarian approach and no injustice is done. The Geneva Convention is applicable universally with 194 states being party to it.[5]

IMMIGRATION LAW

Immigration is the process by which individuals become permanent residents or citizens of other countries.[6]  Immigration policies are often formulated by the state following the inflow of applicants for immigration, the state carefully assesses every policy to safeguard its interests. Immigration Law is that branch of law that specifically deals with the procedures and legislations governing entry into and deportation from a country.

Post-World War II there was a surge in refugees, a large population fled from war-hit nations and sought refuge in countries where they can live a peaceful life free from persecution.’ Article 14’ of the ‘Universal Declaration of Human Rights states that –“Everyone has the right to seek and enjoy other countries’ asylum from persecution”.[7]

At present, an immigrant and an asylum seeker differ from one another. An immigrant is a person who has left their country of origin voluntarily and wishes to make the country where they are arriving a place of residence, whereas a person who is an asylum seeker leaves their country of origin and seeks refuge in another nation as they fear persecution in their country of origin.

If a person had sought refuge in a country and the country has sufficient reasons to believe that they might be persecuted if sent back to the country of origin then asylum is granted. However, once asylum is granted the person cannot be deported back to their original nation as the countries of the world are bound by the principle of ‘non-refoulment’ which prohibits deportation of a persecuted person to their country of origin in cases of refugees.

Thus, every nation is independent in following the rules of entry and exit from their nations depending upon the security of their nation, trade requirements, and the relationship they seek to maintain and preserve with various states of the world at large.

CONCLUSION

Humanitarian Law comprises principles that are essential for the preservation of humankind. Humanitarian grounds form the firm base for all the legislations that are socio-political in nature. While dealing with matters relating to immigration each state formulates its policies and drafts its legislation keeping in mind the Humanitarian principles accepted internationally.

Humanitarian and immigration laws go hand in hand with each other. Both laws cannot be kept in isolated compartments they are interdependent. Immigration is a natural phenomenon; people move from one state to another for various reasons however the treatment with which they are met as immigrants should always be humanitarian. Immigration laws are formulated in such a manner where the fundamental rights of the citizens of the state, as well as the immigrants, are harmoniously preserved and protected.

Author(s) Name: Vidushi Mathur (Dr. DY Patil College of Law, Nerul)

References:

[1]Montevideo Convention, art.1, (1933).

[2] MALCOLM SHAW, INTERNATIONAL LAW 1170, (6th ed.,2008).

[3]UNITED NATIONS, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Jan. 6, 2023).

[4]INTERNATIONAL COMMITTEE OF RED CROSS,https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols (last visited Jan. 6, 2023).

[5]CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols (last visited Jan. 6, 2023).

[6]BRITANICCA, https://www.britannica.com/topic/immigration (last visited Jan. 6, 2023).

[7]UNITED NATIONS, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited January 6, 2023).