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Human Rights and Refugees
There is a causal link between the human rights situation in a given country and the phenomenon of refugee movements. Political refugees leave their countries because of breaches of their civil and political rights; economic migrants, sometimes also referred to as economic refugees, leave on account of conditions that frequently entail violations of economic, social or cultural rights. Other displaced persons are uprooted because of natural disasters or wars, which create situations in which human rights cannot be fully exercised. There is also a vast grey area in between. The Executive Committee of the United Nations High Commissioner for Refugees expressed in its 1988 Conclusion No. 52 (XXXIX) on "International Solidarity and Refugee Protection" a deep concern over "the serious violations of human rights which accompany refugee problems and the dislocation and distress they cause for the millions of individuals involved." (emphasis added)
From another perspective, there are inherent human rights links that accompany the refugee anywhere he goes, since a host country must respect the human rights of all persons within its territory, including aliens and refugees. Indeed, the protection of the human rights of refugees belongs to the emerging universal human rights culture.
In the year 2001, it is estimated that there are some 22 million refugees worldwide. But who can claim "refugee status" and what are the rights of a refugee under international law? There are various definitions.
Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (in force 22 April 1954) formulates the key requirement for qualification as a convention refugee in paragraph A(2), as a "well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." The Protocol Relating to the Status of Refugees of 31 January 1967 (in force 4 October 1967) extends the temporal application of the Convention without changing the refugee definition. There are 143 States parties to the Convention and its Protocol. Many consider this definition too restrictive and not in keeping with the real needs and problems of displaced persons in the twenty-first century.
In this age of mass exoduses, maybe only about ten percent of persons seeking refuge outside their countries of nationality may qualify as convention refugees, strictu sensu . Many more are in the category of economic migrants, while others are persons who, "owing to external aggression, occupation, foreign domination or events seriously disturbing public order" in the country of origin are compelled to seek refuge elsewhere. Reference should be made to article 1, paragraph 2, of the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, of 10 September 1969 (in force 20 June 1974), and to the Cartagena Declaration of 22 November 1984 for the Central and Latin American region, which in Conclusion No. 3 includes among refugees "persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order." (emphasis added)
Minimum rights in host countries
Persons who seek refugee status are entitled to due process. During the period of examination of their application for refugee status and after their status has been determined, they are entitled to enjoy the fundamental human rights and freedoms provided for in the United Nations Covenant on Civil and Political Rights (148 States parties ); Moldova acceded on 26 January 1993. In this context, it is important to refer to the general comment of the Human Rights Committee on "the position of aliens under the Covenant". The general rule is that "each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens". Of particular interest to aliens and refugees is the right to freedom of movement. This right is guaranteed in numerous international instruments, including article 13 of the Universal Declaration of Human Rights, article 12 of the International Covenant on Civil and Political Rights, and article 2 of Protocol 4 to the European Convention on Human Rights, subject to certain limitations on grounds of ordre public , health and morals (ICCPR Art. 12, paragraph 3). Moreover, some restrictions of the rights of refugees are reasonable, e.g. with regard to their participation in activities directed against the country of origin, since the host country has a legitimate interest in maintaining friendly relations with other States, including refugee-producing countries.
Moreover, there are certain justifiable distinctions between citizens and non-citizens, e.g. with regard to the exercise of the right to vote. Article 1, paragraph 2, of the International Convention on the Elimination of All Forms of Racial Discrimination excludes its application "to distinctions, exclusions,
restrictions or preferences made by a State Party to this Convention between citizens and non-citizens."
But refugees and asylum seekers have priorities other than the enjoyment of all civil and political rights. When refugees arrive in a host country, the immediate concern is to help them survive, ensure their human dignity and family life and then to process their requests for refugee status in a just and expeditious manner. They should not have to wait three years to learn that they will not be granted refugee status.
The issue of asylum has been and remains controversial and politicized. Article 14, paragraph 1, of the Universal Declaration of Human Rights provides that "Everyone has the right to seek and to enjoy in other countries asylum from persecution". A right to asylum, however, was not included in the Covenant on Civil and Political Rights. The drafters evidently considered that asylum, as most immigration matters, needed close regulation. States chose not to restrict their sovereignty by assuming obligations in this field, beyond those assumed by virtue of the 1951 Refugee Convention. Indeed, many parties to the Refugee Convention are also parties to the International Covenant on Civil and Political Rights. Moreover, the United Nations Declaration on Territorial Asylum of 14 December 1967 recognizes in its preamble that "the grant of asylum by a State to persons entitled to invoke article 14 of the Universal Declaration of Human Rights is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State."
Because of the ever increasing numbers of economic migrants, the very concept of asylum is in danger of being negated. Those seeking asylum for genuinely political reasons and having good reasons to fear refoulement may be denied refugee status if they are confused with economic migrants. Indeed, article 3 of the United Nations Declaration on Territorial Asylum provides that persons may be rejected at the frontier or expelled "in order to safeguard the population, as in the case of a mass influx of persons."
Enforcement of the Principle of non-refoulement
Article 32 of the Refugee Convention provides that a refugee lawfully in the territory of a contracting State shall not be expelled save on grounds of national security or public order. Moreover, the expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law, and the person concerned should be allowed a reasonable period within which to seek legal admission into another country.
A central concern of refugee protection remains the principle of non-refoulement. Article 33 of the 1951 Refugee Convention prohibits the expulsion of a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Refugee Convention, however, did not establish a tribunal or committee of experts to decide on refugee determination, nor did it establish an appeal instance to which an asylum seeker, whose application for asylum has been rejected by national tribunals, may turn to for help.
Such issues, however, can be brought before two United Nations Committees: the Human Rights Committee pursuant to the procedure established under the Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966(in force 23 March 1977, 148 States parties; 101 States parties to the Optional Protocol) , and to the Committee Against Torture under the procedure established under article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (in force 26 June 1987; 127 States parties to the Convention, 45 States parties to the individual complaints procedure).
These individual complaints procedures have given practical effect to the principle of non-refoulement, not only by virtue of the conclusions and recommendations following the examination of individual cases by the expert committees, but most importantly in a preventive manner , through the issuance of interim measures of protection, requesting States parties to refrain from deporting or extraditing an individual while his or her case is being considered by the respective Committee.
Bearing in mind that the precarious situation of refugees frequently requires urgent action, it is significant that both Committees have established the function of a Special Rapporteur on New Communications and a Special Rapporteur on Interim Measures, respectively, who usually act within hours of the receipt by the Secretariat of the Office of the United Nations High Commissioner for Human Rights of a request for interim measures.
Rule 86 of the rules of procedure of the Human Rights Committee provides: “The Committee may, prior to forwarding its views on the communication to the State party concerned, inform that State of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation.” Similarly, Rule 108(9) of the rules of procedure of the Committee Against Torture stipulates: “In the course of the consideration of the question of the admissibility of a communication, the Committee or the Working Group or a special rapporteur designated under rule 106, paragraph 3, may request the State party to take steps to avoid a possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation.”
Of course, neither the Human Rights Committee nor the Committee Against Torture is competent to apply the Geneva Refugee Convention or to make an independent determination on refugee status. The competence of each Committee is limited to the application and interpretation of its own treaty – i.e. the Convention Against Torture and the International Covenant on Civil and Political Rights, respectively.
Which are the relevant provisions that the Committees can invoke? Most important, perhaps, is Article 3 of the United Nations Convention against Torture which specifically prohibits the expulsion or extradition of any person to a State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. The text of Article 3 is as follows:
“1. No State shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”
Indeed, in its 14 years of operation, it is the Committee Against Torture that has taken the vanguard in protecting the rights of asylum seekers from refoulement. The manifold issues surrounding the prohibition of expulsion and extradition laid out in article 3 of the Convention are the subject of regular dialogue between the Committee and State party delegations during the examination of State party reports. Moreover, in November 1997 the Committee Against Torture issued an important General Comment on the implementation of article 3 in the context of article 22 of the Convention. It was the first general comment elaborated by the Committee since the beginning of its mandate in 1988 .
As indicated above, unfortunately, only 45 States have recognized the competence of the Committee to examine individual complaints under the quasi-judicial procedure established under article 22 of the Convention. Thus, this procedure is far from being universal.
In many individual cases, following examination of the facts as submitted by the petitioner and by the State party, the Committee has concluded that the petitioner would be exposed to a real risk of being subjected to torture if he were expelled, and that the forcible removal of the individual would entail a violation of article 3 of the Convention. See inter alia: Mutombo v. Switzerland, Kahn v. Canada, Jose Arkauz Arana v. France, Elmi v. Australia, A.F. v. Sweden, Cecilia Rosana Nunez Chipana v. Venezuela. In other cases, the Committee has found that the removal of the complainant to a given country would not entail a violation of article 3 of the Convention. See inter alia : T.P.S. v. Canada, G.R.B. v. Sweden.
The International Covenant on Civil and Political Rights does not, prima vista, provide much protection to asylum seekers. Article 13 of the Covenant merely states:
“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
Under this provision, a State party may invoke “compelling reasons of national security” to deny an alien lawfully in its territory the right to submit the reasons against his expulsion. Furthermore, there is also the question of who is an “alien lawfully in the territory”. Does such a person enjoy any protection?
In the early years of the Human Rights Committee, the issue of refugees or of refoulement was rarely discussed. It is only more recently, in the context of the protection of the right to family life and in connection with the prohibition of torture, that the Committee has been formulating criteria to protect the rights of refugees and asylum seekers.
Although Article 7 of the Covenant, which contains the prohibition of torture, does not specifically proscribe the expulsion or extradition of a person to a country where he or she may be exposed to torture, it is the view of the Human Rights Committee, as expressed in the examination of State reports, that it must be interpreted as including the principle of non-refoulement. Moreover, the Committee's general comment No. 20 (44) explicitly stipulates that "...States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement."
Under the Optional Protocol procedure, all persons within the jurisdiction of a State party, including aliens and refugees, may invoke their rights before the Human Rights Committee by addressing petitions that are examined on the merits and result in final decisions ("Views") with specific recommendations. The United Nations Human Rights Committee has had the opportunity to decide on the legality of expulsion or extradition of aliens, as well on the conditions of detention pending deportation, in a number of cases, including Maroufidou v. Sweden , Torres v. Finland , Pierre Giry v. Dominican Republic , Hammel v. Madagascar , V.M.R.B. v. Canada , J.R.C. v. Costa Rica , M.F. v. The Netherlands , Kindler v. Canada, Cox v. Canada. Celepli v. Sweden , and A. v. Australia . As in the case of the Committee Against Torture, the urgent procedure to defer expulsion or extradition has been frequently invoked, and States parties have largely complied with such requests for interim measures of protection.
An important recent decision of the Human Rights Committee, Winata v. Australia , concerns illegal immigrants to Australia who were threatened with expulsion to Indonesia. Although this case does not involve refugees, the examination of the issues of family life and of special measures of protection owed to children are of relevance to refugees and persons in refugee-like situations. The Committee had to consider whether the deportation of the parents would necessarily interfere with family life and whether the boy, who had been born in Australia and was an Australian citizen, required measures of protection in the form of a right to remain in Australia with his parents. The Committee held that the expulsion of the parents would entail a violation of articles 17, 23 and 24 of the Covenant.
Refoulement is also prohibited in the OAU Refugee Convention and in the Cartagena Declaration. Thus, it may be said that customary international law has emerged from international legislation and practice. Some scholars even maintain that the principle of non-refoulement has become jus cogens .
Article 4 of Protocol 4 to the European Convention on Human Rights provides that "collective expulsion of aliens is prohibited". The European Commission of Human Rights has the competence to examine complaints concerning the violation of this provision.
The UN Human Rights Committee has also expressed its view that collective expulsions constitute a violation of many of the provisions of the International Covenant on Civil and Political Rights, notably article 12. In the Committee's General Comment No. 27 on article 12, a prohibition of mass expulsions and a right to return are affirmed. Similarly, the European Commission and Court of Human Rights have held that a right to return exists for refugees and expellees.
Articles 18 and 20 of the International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind refer to "deportation or forcible transfer of population" as an international crime and a crime against humanity. Articles 7 and 8 of the Statute of the International Criminal Court similarly refer to such deportations as war crimes and crimes against humanity.
Article 1, paragraph C, of the Convention on the Status of Refugees, the so-called "cessation clause", rests on the proposition that refugee status is not permanent and enumerates the conditions under which the convention shall cease to apply. Refugee status should not be confused with the status of a permanent immigrant. If a State decides to terminate a person's residence permit upon the cessation of persecution in the person's country of origin, this decision does not per se entail a violation of that person's human rights.
Repatriation, however, must take the human rights of refugees into account and should be carried out on a voluntary basis. This principle has been adopted in numerous international documents, including the OAU Refugee Convention (article V) and the 1981 Contadora Act on Peace and Co-operation in Central America.
The granting of nationality is very much a prerogative of sovereign States. Article 15 of the Universal Declaration on Human Rights establishes the right
of every person to a nationality and further the right to change nationality. The Covenant on Civil and Political Rights does not protect these rights as broadly but provides in article 24, paragraph 3, that every child has the right to acquire a nationality. This issue is covered in articles 7 and 8 of the Convention on the Rights of the Child (in force 2 September 1990; 191 States parties). This may mean that at least the children of refugees should have the right to acquire a nationality. Article 34 of the 1951 Refugee Convention provides that contracting States should as far as possible facilitate the assimilation and naturalization of refugees.
In its General Comment No. 27 on article 12, the Human Rights Committee has expressed the view that “A State party must not by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent that person from returning to his or her own country.”
Another important problem is that of forced resettlement of persons within a country, without crossing national frontiers. Even if these persons do not qualify as convention refugees, they still have human rights that ought to be protected. Perhaps the experience to be gained from the establishment of security zones for internally displaced Kurds in Iraq will be helpful in devising solutions for future crises. The concept of State sovereignty is being questioned, and it will be for the world community to decide on the scope of article 2, paragraph 7, of the United Nations Charter and on the practicability of humanitarian intervention. In this connection, the Guiding Principles on Internal Displacement, adopted 1998 by the General Assembly on the basis of the reports of Special Rapporteur Francis Deng are particularly relevant .
Refugee law and policy are concerned both with curative and preventive measures. Massive refugee flows can be prevented by the respect of human rights, including economic rights, in the countries of origin. Curative measures include voluntary repatriation when conditions improve, and if repatriation is not possible then naturalization in the host country or resettlement in a third State. The Office of the United Nations High Commissioner for Human Rights and the Office of the United Nations High Commissioner for Refugees actively co-operate in devising solutions that ensure the maximum respect for the human rights of refugees throughout the world.
Alfred de Zayas/ 15 June 2001
Implementation of article 3 of the Convention in the context of article 22 * </DIV>
In view of the requirements of article 22, paragraph 4, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that the Committee against Torture "shall consider communications received under article 22 in the light of all information made available to it by or on behalf of the individual and by the State party concerned",
In view of the need arising as a consequence of the application of rule 111, paragraph 3, of the rules of procedure of the Committee (CAT/C/3/Rev.2), and
In view of the need for guidelines for the implementation of article 3 under the procedure foreseen in article 22 of the Convention,
The Committee against Torture, at its nineteenth session, 317th meeting, held on 21 November 1997, adopted the following general comment for the guidance of States parties and authors of communications:
1. Article 3 is confined in its application to cases where there are substantial grounds for believing that the author would be in danger of being subjected to torture as defined in article 1 of the Convention.
2. The Committee is of the view that the phrase "another State" in article 3 refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited.
3. Pursuant to article 1, the criterion, mentioned in article 3, paragraph 2, of "a consistent pattern or gross, flagrant or mass violations of human rights" refers only to violations by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
4. The Committee is of the opinion that it is the responsibility of the author to establish a prima facie case for the purpose of admissibility of his or her communication under article 22 of the Convention by fulfilling each of the requirements of rule 107 of the rules of procedure of the Committee.
5. With respect to the application of article 3 of the Convention to the merits of a case, the burden is upon the author to present an arguable case. This means that there must be a factual basis for the author's position sufficient to require a response from the State party.
6. Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.
7. The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present. All pertinent information may be introduced by either party to bear on this matter.
8. The following information, while not exhaustive, would be pertinent:
(a) Is the State concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights (see art. 3, para. 2)?
(b) Has the author been tortured or maltreated by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past?
(c) Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects?
(d) Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered?
(e) Has the author engaged in political or other activity within or outside the State concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or extradited to the State in question?
(f) Is there any evidence as to the credibility of the author?
(g) Are there factual inconsistencies in the claim of the author? If so, are they relevant?
9. Bearing in mind that the Committee against Torture is not an appellate, a quasi-judicial or an administrative body, but rather a monitoring body created by the States parties themselves with declaratory powers only, it follows that:
(a) Considerable weight will be given, in exercising the Committee's jurisdiction pursuant to article 3 of the Convention, to findings of fact that are made by organs of the State party concerned; but
(b) The Committee is not bound by such findings and instead has the power, provided by article 22, paragraph 4, of the Convention, of free assessment of the facts based upon the full set of circumstances in every case.
GENERAL COMMENT OF THE HUMAN RIGHTS COMMITTEE ON THE POSITION OF ALIENS UNDER THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
* Contained in Document A/41/40, Annex VI.
Senior Human Rights Officer, Office of the UN High Commissioner for Human Rights, Geneva, J.D. (Harvard), Dr.phil. (Gottingen), Senior Fellow, International Human Rights Law Institute, Chicago. The views expressed in this article are those of the author in his private capacity and do not necessarily reflect those of organizations with which he is associated.
Cf. Oldrich Andrysek, “Protecting Refugees and Persons in Refugee-like Situations”, in Gudmundur Alfredsson et al. (eds.) International Human Rights Monitoring Mechanisms, Martinus Nijhoff, The Hague, 2001, pp. 343-355.
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In order not to cause any complications or embarrassment to unsuccessful petitioners, the Committee Against Torture uses initials in declaring cases inadmissible or when it makes a finding of no violation.
A/56/40, Vol. II, Annex X. T. The Committee held: “It is certainly unobjectionable under the Covenant that a State party may require , under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child received citizenship either at birth or at a later time, sufficient in itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances. In the present case, both authors have been in Australia for over fourteen years. The authors' son has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterization of arbitrariness. In the particular circumstances, therefore, the Committee considers that the removal by the State party of the authors would constitute, if implemented, arbitrary interference with family, contrary to article 17, paragraph 1, in conuunction with article 23, of the Covenant in respect of all the alleged victims, and, additionally, a violation of article 24, paragraph 1, in relation to Barry Winata due to a failure to provide him with the necessary measures of protection as a minor.” (para. 7.3)
A. de Zayas, “Population Transfers and the UN Sub-Commission on Promotion and Protection of Human Rights” in Human Rights , published by UN High Commissioner for Human Rights, 1999, No. 1, pp. 30-33. Also A. de Zayas, “Population Transfers” in R. Bernhardt, Encyclopaedia of Public International Law, Vol. 3. 1997, pp.1062-68 .
Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees, Martinus Nijhof, Dordrecht, 1997. A. de Zayas, “Repatriation”, in R. Bernhardt, Encyclopaedia of Public International Law, Vol. 4, 2000, pp. 185-191. J. Quigley, Mass displacement and the Individual Right to Return, in “British Yearbook of International Law” Vol. 68 (1997), pp. 65-125.
Report of the Representative of the Secretary-General, Submitted by Special Rapporteur Francis Deng Pursuant to Commission on Human Rights Resolution 1995/57, “Internally Displaced Persons”; Report of the Representative of the Secretary-General, Submitted Pursuant to Commission on Human Rights Resolution 1997/39, Addendum, Guiding Principles on Internal Displacement/Francis Deng/ E/CN.4/1998/53/Add.2 (1998). Also, A. de Zayas, “Forced Resettlement”, in R. Bernhardt, Encyclopaedia of Public International Law, Vol. 2., 1995, pp. 422-425.
Report of the Representative of the Secretary-General, Mr. Francis Deng, Submitted Pursuant to Commission on Human Rights Resolution 1997/39, Addendum, Guiding Principles on Internal Displacement, UN Doc., E/CN.4/1998/53/Add.2 (1998).
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