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We
live in a world of powerful nation
states. Each can categorise a
non-citizen so as to lessen legal
safeguards against wrongful
deportation. They may be named a
terrorist. Those working with
refugees are not powerless. The
international human rights treaties
ratified by most western states
provide for individual complaints.
If successful, a treaty complaint
makes it harder for a government to
deport a person or family in
violation of a treaty. As
one treaty body representative put
it: “our voice is a bit stronger
than yours.” There are helpful cases
involving Canada and there are
Canadian lawyers who have experience
with these complaints. The
effectiveness of this process
depends on using it and on
supporting the fragile international
treaty bodies and their procedures.
Support depends on non-governmental
organisations, NGOs, which give a
treaty body visibility and which
monitor the integrity of its
procedures. Without a concerned
cohort of watchful NGOs, an
effective treaty body may not be
there in times of need. Where to Complain There are three main
places to which individual
complaints can be sent from
Canada: the UN Committee against
Torture (CAT); the UN Human Rights
Committee (HRC); and the
Inter-American Commission on Human
Rights (IACHR). None was set up
specifically with asylum seekers
in mind. Each has its own treaty,
procedures and potential
usefulness. The complainant must
show by a written submission that
the threatened deportation would
violate one or more of the
particular treaty rights. Each
body has developed some
specialization with respect to
deportation. Each has its
variation on “interim measures” –
a procedure whereby the body will
ask Whichever treaty body
an individual applies to, there is
a two-step process. The complaint
must first pass the
“admissibility” stage. This means
providing sufficient evidence to
show that the case is a serious
one, and also demonstrating that
one has “exhausted domestic
remedies.” That means having tried
all reasonable legal procedures
available in Committee against
Torture (CAT) The CAT can apply
Article 3 of the Convention
against Torture which provides:
“No
State
Party 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.” There is a good body
of case law, including several
recent Canadian cases. Basic
principles are well described in
the Committee’s General Comment
on Article 3 of the Convention,
1996. The burden on the
complainant is quite high. One
has to provide written evidence
showing a personal and serious
risk of torture in all parts of
a country.
Human Rights Committee (HRC) The HRC can apply
the International Covenant on
Civil and Political Rights
(ICCPR) which also deals with
protection from torture (Article
7) as well as the rights to life
(Article 6), freedom (Article
9), freedom of movement (Article
12), family life (Article 17),
family protection (Article 23)
and rights of the child (Article
24). The circumstances in which
a violation of some of these
rights were found, like Article
12, were quite extreme. Yet if
one has a combination of real
risk of torture and a
demonstrable threat to family
rights this is the place to go.
Likewise, go here if there is a
detention issue involved.
Adequate evidence for each right
in question is essential. The
HRC looks to the European Court
of Human Rights case law on
matters like pre-deportation
detention and protection of
family rights in deportation.
The IACHR is a body
drawing its authority from its
role receiving complaints under
the rather less specific rights
of the American Declaration of
Rights and Duties of Man.
However, it draws additional
authority from its own statutes
and its wider role in the
Organization of American States
human rights system. The
American Declaration recognizes
the right to seek and receive
asylum “in accordance with the
laws of each country and with
international agreements.” The
Refugee Convention is the
relevant international
agreement. So the IACHR is a
particularly good forum in which
to raise refugee rights. Also,
the American Declaration and the
OAS human rights system have
stronger concerns about fair
trial due process then the other
treaty systems. It was the IACHR
which called in its 2000 Report
for an appeal on the merits in
the Canadian refugee status
determination procedures. In
addition, the Commission’s case
law has called for access to a
court hearing for adjudicating
family rights in deportation.
For a mix of substantive and
procedural rights, this is the
place to go as the following US
case shows:
The IACHR may be a
good forum to complain about
discrimination targeting
specific groups of asylum
seekers. Case law has
established that the American
Declaration's right to seek
asylum engages the Refugee
Convention. Article 3 of Refugee
Convention calls for equal
access to Refugee Convention
rights, including article 1,
which defines refugee status.
The corresponding American
Declaration Article II promises
equal treatment in the enjoyment
of the right to seek and receive
asylum. Yet international case
law has allowed some objective
“distinctions.”
A complaint can only
go before one of these treaty
bodies. However, it is useful to
copy other relevant human
rights bodies like the UN Special
Rapporteur on Torture or the UN
Working Group on Arbitrary
Detention whenever a formal
complaint is submitted - even
whenever a letter is written to a
minister or official to bring to
their attention situations in
seeming breach of human rights
undertakings. The international
actors have to know what is going
on and what problems there are if
they are to push States towards
fulfilling human rights
obligations. In the End We Need
Each Other A great comfort is
experienced by refugees and their
advocates when an international
body confirms that the government
had it wrong. It is strangely
therapeutic. Pressure from an
international body is additional
leverage on a government. The
views of these bodies reach beyond
us. They speak to other
governments and other NGOs. They
may speak softly, but the
cumulative impact is wide. They
slowly push on the rules governing
the lives of more refugees than we
imagine. The International
Human Rights treaty bodies need
NGOs as
much as NGOs need them. They draw
strength and encouragement when
they hear from NGOs, see NGOs,
read what NGOs say about their
decisions in the media and to
their government – even when NGOs
object to some of their views.
Unfortunately, human rights are no
longer the strong currency among
governments that they were around
the end of the Cold War. It is in
the public interest and the
interest of non-citizens that NGOs
and the people of the United
Nations keep the dream of
international rights alive and
help the treaty bodies make sure
that the promises of the treaty
human rights are realized. They
must not be forgotten. They need
NGO help to have visibility within
powerful states and they need the
critical eye of NGOs to keep their
integrity. So no one should be
afraid of knocking on the treaty
bodies' doors: with a complaint;
with a concern about their
decisions; or just to learn how
things are going.  |