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 From the 2003 Final Report of the UN Sub-Commission on Human Rights, it seems clear that non-citizens are one of the most disadvantaged groups with respect to their rights worldwide. They are promised rights in equality with everyone else.[1] However there are big “gaps.” [2] This note finds some of them link to lack of case law and others to State refusal to honour obligations. Generally
cautious of the value of human rights
treaties
and critical of the Rapporteur’s
optimistic view of the potential of
human
rights, Hathaway in his 2005 book on the
human rights of refugees
concedes that
for Civil and Political Rights,
international human rights treaties can
help
refugees.[3]
However,
when discussing the views the UN Human
Rights Committee on
non-discrimination
in particular, Hathaway sees the Committee
as cautious and likely to
remain so
in giving its views on the UN Covenant on
Civil and Political Rights.[4] Hathaway is right when he says that more work needs to be done to permit non-citizens to enjoy the rights promised – even the civil and political rights. Nonetheless, the expert paper by Schabas, “Non-Refoulement,” shows how human rights treaties now together provide the beginnings of prohibition on deportation of non-citizens when irreparable harm would occur, at least with respect to life or torture.[5] At the same time, surprisingly, Schabas seems to misunderstand the UN Committee. He seems worried by the UN Human Rights Committee General Conclusion pointing out that the parties to the CCPR are to “ensure” the treaty rights.[6] He questions this part of the established position of the Committee and its absolute prohibition of expulsion of a non-citizen when there is a real risk of consequential torture. Yet “ensure” is indeed what the treaty says and what the signatories agreed upon for all rights. Moreover Schabas acknowledges that the right in question, no torture, is special in that a) it should never be suspended even in a national emergency [it is a “non-derogable” right], and b) the right to protection from torture is the object of an entire subsequent UN treaty in which the expulsion context for protection of the no torture right is elaborated in considerable detail. As Schabas implies, there is further work to be done around “irreparable harm” and the rights to life and to no torture. Beyond these, the views of the Human Rights Committee relating to expulsion of non-citizens are overly cautious when the CCPR right to freedom of movement is engaged. The Committee found ways to avoid finding a violation in Stewart v. Canada and Chiarelli v. Canada. It had been expected by scholars that this right would protect a long term resident non-citizen. The Committee has only found the CCPR right to family life to have been violated in one case, Winata v. Australia, a situation involving a non-citizen parents and a 13 year old life long resident citizen child. The Committee has also been cautious with respect to the right to an effective remedy and the right to a fair trial for the adjudication of enumerated treaty rights. It has taken the view that the non-citizen’s special right to present reasons against expulsion is sufficient. The special right to present reasons against an expulsion does not take away other treaty rights nor the fair trial right which they attract for their adjudication. For those in European countries, the European Court of Human Rights’ case law on substantive rights to life, to protection from torture or cruel treatment and to protection of family life in expulsion has established some appropriate norms. At the same time, the Court’s cautious approach to what constitutes a right to an effective remedy for a non-citizen in expulsion proceedings like Chahal[7] is inappropriate for a social group recognized as disadvantaged. The right of a child to join a non-citizen parent living in a foreign land has not been recognized and the reluctance of the European Court to recognize and apply a non-citizen’s right to a fair trial for an enumerated treaty right is unacceptable. An additional Protocol adds the right of a non-citizen to present reasons against expulsion similar to that in the CCPR. Contrary to the current implications from the Court, this does not remove the related fair trial and equal treatment provisions of the main treaty which should apply when treaty rights to family unity or protection from cruel treatment arise. In In
summary, there remain gaps with respect to
rights to
life, liberty and security of person,
family life and freedom of
movement.
There are related gaps in due process
rights - fair trial, effective
remedy and
equal treatment. The gaps at the UN and
European level correlate with
human
rights treaty case law. In the [1] The Special Rapporteur concluded: “…that all persons should by virtue of their essential humanity enjoy all human rights unless exceptional distinctions, for example, between citizens and non-citizens, serve a legitimate State objective and are proportional to the achievement of that objective…” David Weissbrodt, Final report on the rights of non-citizens, U.N. Doc. E/CN.4/Sub.2/2003/23 (2003), Executive Summary, para. 2. [2] “… a large gap between the rights that international human rights law guarantee to non-citizens and the realities they must face… Ibid para. 3. In many countries the most disadvantaged group is composed of non-citizens who are denied the full range of rights under international and national law. …” Ibid, Add para. 3. … Asylum seekers, including children, pregnant women, and elderly people, have been held in detention centres without adequate health and mental health care, education, and recreation facilities. Asylum seekers have been denied access to legal advice and to the courts to challenge their detention. …” Ibid, Add para.14. [3]
James C. Hathaway, The
Rights of Refugees
under International Law, [4] Ibid, 128-129. [5] William A. Schabas, “Non-Refoulement”, Background Paper for the Technical Workshop on Human Rights and International Cooperation in Counter-Terrorism, Liechtenstein, 15-17 November 2006, OSCE Office for Democratic Institutions and Human Rights and UN Office of the High Commissioner for Human Rights, Final Report, February 2007. [6] Human Rights Committee, General Comment No.31[80], Nature of the General legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 26 May 2004. [8] Inter-American Commission on Human Rights, "Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System", OAS doc. OEA/Ser.L/V/II.106, Doc.40 rev., Feb. 28, 2000. |