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 Obama
has publicly promised to close the prison
at Guantanamo and one can
hope that the use of military tribunals
and of evidence obtained by
questionnable forms of interrogation will
end. But it is to be hoped
there can be a wider change than this. Over
the years the human rights legacy of the
Carter presidency years has
been eroded. The area of rights for
non-citizens, "aliens", is a
particular area in which the West as a
whole has moved down a path away
from equal treatment and away from formal
procedures with safeguards
for incarceration, now called "detention",
and for expulsion or
deportation, now called "removal". The
US had some promising safeguards in the
1980s - formal tribunal
hearings for withholding deportation on a
range of grounds which were
compatible with protecting the rights at
issue. The decision could be
appealed to an Board of Immigration
Appeals, and from there to the
relevant circuit of the US Federal Court.
During the intervening years,
the grounds have been narrowed and those
eligible have been narrowed.
Some classes of non-citizen don't have the
same rights of process.
Family rights and acquired security of
person rights from duration of
stay play a less certain role. The appeal
was limited in streamling in
2002
to one decision maker for most decisions
and with a reduced review
standard. Then NGOs argue that the appeal
quality has been further
reduced by the appointment of decision
makers with less than evident human rights
credentials. All of this
follows the general policy adopted in the
West of deterring arrivals of
undocumented non-citizen asylum seekers
and migrant workers by
streamlined and simple appeals. Such
appeals present non-citizens with
a real
possibility of inappropriate incarceration
or expulsion. The
deterrence of migrants and asylum seekers
by inadequate safeguards for
protecting rights against inappropriate
incarceration or expulsion was
always dubious. However, the present sorry
state of the economy surely
now offers
some deterrence itself, making inadequate
procedures for migrants
doubly
questionnable. One
simple way of boosting the procedural
rights of non-citizens would be
to give effect to the rights in the
(Inter) American Convention on
Human Rights of the OAS. And that would
give a boost to human rights in
the entire region of the Americas. Obama
takes charge at a time when,
for years, the US has remained one of two
States in the Americas which are not
parties to the American Convention
on Human Rights. The US signed in the
early 1980s - but never ratified.
Canada never signed. But Canada's Senate
Standing Committee on Human
RIghts
has more than once recommended that Canada
proceed to sign on. The
Convention is unique in that it
unambiguously captures the general
intent from the mid-20th century: that
when a person's rights are
adjudicated, an independent and impartial
tribunal must make the
adjudication; and that a person must have
a simple effective court
remedy when important rights are
threatened by the authorities. These
matter a lot for a range of procedures
impacting
non-citizens - including the State's
freedom to incarcerate or expel
without a legitimate aim and unless there
are necessary and
proportionate means. So
here's hoping Obama goes beyond closing
Guatanamo and reaches for what
the US once stood for - Inter-American
human rights standards as
encoded in the (Inter) American
Convention. |