Brief to the Department of Foreign Affairs and International Trade Canada for the consultation with NGOs in preparation for the 55th session of the UN Commission on Human Rights



March 1999

The Canadian Council for Refugees (CCR) is a coalition of around 140 non-governmental organizations across Canada concerned for refugees. The CCR focuses on the protection of refugees both internationally and in Canada, Canada's responses to the needs of refugees, and the settlement of refugees and immigrants in Canada.

Human rights issues are central to refugee concerns. Human rights abuses force refugees to flee their countries. Having fled, refugees frequently find themselves subjected to further violations of their human rights.

Despite these evident and fundamental links, refugee issues are all too often excluded from the agenda of those concerned with human rights. Within the UN system, human rights concerns relating to refugees are generally referred to the office of the UN High Commissioner for Refugees. The UNHCR is, however, a humanitarian service agency and its Executive Committee is an intergovernmental body. Within the UNHCR, human rights concerns often take a back seat to political exigencies, causing refugee rights to be less than human rights.

This brief outlines many concerns of the Canadian Council for Refugees. Some relate to specific regional situations, others are thematic. But, underlying them all is the fundamental concern that the right to asylum, as outlined in Article 14 of the Universal Declaration of Human Rights, is under attack in many parts of the world. In order to address the grave human rights abuses faced by the millions of refugees and internally displaced persons, urgent and decisive action by the international community is required. The human rights regimes need to be strengthened and gaps closed to ensure their application to all including asylum-seekers, refugees and displaced persons.


RIGHT TO ASYLUM - According to Article 14.1 of the Universal Declaration of Human Rights, "Everyone has the right to seek and to enjoy in other countries asylum from persecution". This principle is reflected in Article 33 of the Convention Relating to the Status of Refugees, which establishes the principle of non-refoulement. The right to asylum is however under attack in many parts of the world. Borders are closed to those in flight; interdiction programs prevent asylum-seekers from continuing their journeys towards a country of possible refuge; restrictions on access to asylum procedures bar refugees from having their claim heard. Those making refugee determinations in many cases apply an overly narrow interpretation of refugee definition and most countries offer inadequate procedural guarantees for those in the refugee claim process. Many governments are using detention, attacks on the refugees' physical security or deprivation of basic necessities and rights as a means of deterrence. Refugees are being forcibly returned to their country, in many cases with false claims made that the repatriation is voluntary. Because of their legal and social status as outsiders, refugees and asylum-seekers whose rights have been denied are often without an effective remedy. In the course of 1998, the widespread reluctance to recognize the rights of refugees was revealed for example in a European Union discussion paper that proposed the replacement of a rights-basis asylum régime by a discretionary system.

Canada should advocate strongly for host countries to observe the fundamental right to seek asylum and its corollary international principle of non-refoulement. Countries who have not done so should be encouraged to accede to the 1951 Geneva Convention and 1967 Protocol.

To assist in protecting the right to asylum, non-governmental organizations, including NGOs representing refugees themselves, should be involved in all governmental and intergovernmental discussions which have a bearing on the rights of refugees.

The American Convention on Human Rights - The international human rights system is strengthened by the existence of regional systems, which need to be developed to reinforce global respect for human rights. Unfortunately Canada has not acceded to the American Convention on Human Rights.

Since joining the Organization of American States, Canada has had an opportunity to play an increasingly important role in promoting human rights in the hemisphere. Without accession to the Convention, however, Canada's participation in the OAS seems partial. We urge the government to exercise leadership in undertaking the necessary provincial consultations to ensure that everyone in Canada benefits from the protection afforded by the American Convention.

Compliance mechanism - One of the fundamental obstacles to safeguarding the right to asylum is the absence of any compliance mechanism within the UN system. Article 35 of the 1951 Geneva Convention provides for a reporting mechanism: it has however proved to be without effect. No mechanism exists to assess compliance with the Convention. None of the existing treaty-based bodies and theme mechanisms are expert in refugee issues. We recommend that the Commission on Human Rights and the Executive Committee of the UN High Commission for Refugees work together to establish an effective mechanism to implement the right to seek and enjoy asylum as set out in Article 14 of the Universal Declaration of Human Rights, as well as the rights granted to refugees and asylum-seekers in the 1951 Convention on Refugees and the 1967 Protocol.

An appropriate mechanism would, in our view, consist of an independent body of experts patterned after the existing theme mechanisms. For states parties to the 1951 Convention and/or the 1967 Protocol, the mechanism would have responsibilities similar to those of UN treaty-monitoring bodies. It would receive reports from the states parties on their compliance with the Convention and/or Protocol, study the reports and comment upon them. It would assist states parties generally in the objective application of the rights set out in the Convention and Protocol.

An optional protocol to the Refugee Convention should be drafted and opened for signature in order to make reporting to this mechanism compulsory for those states that signed and ratified the protocol. A second optional protocol should allow for the right of individual petition to the mechanism. In advance of the drafting and ratification of these protocols, the mechanism, once created, would nonetheless receive and consider reports from states on a voluntary basis as well as petitions from individuals with the consent of the state concerned.

For both signatories to the Refugee Convention and/or Protocol and non-signatories alike, the mechanism would have the objective of monitoring, analyzing and promoting the right to seek and enjoy asylum from persecution as set out in the Universal Declaration of Human Rights. In this respect, the mechanism would function in the same manner as the existing theme mechanisms.

In relation to the Refugee Convention and Protocol, the mechanism would apply the refugee definition as set out in the Convention. Furthermore, in relation to the right to seek and enjoy asylum, the mechanism would not be restricted to the Convention definition, but instead would encompass the larger right countenanced in the Universal Declaration.

Such a mechanism, when established, should cooperate with other mechanisms in the field of human rights to avoid duplication. The mechanism would be serviced by the UN Centre for Human Rights and would come under the line authority of the UN High Commissioner for Human Rights. The mechanism must operate in cooperation with the UNHCR.

Internally displaced - Internally displaced people, who resemble refugees in almost all respects except that they have not crossed an international border, receive in general even less protection of their rights than refugees. The CCR welcomes the increased focus given recently to the internally displaced within the UN. In this regard the work of the Representative of the Secretary General for the Internally Displaced is very positive. It must however be emphasized that the appointment of the Representative does not constitute corrective action, as he himself has been careful to point out. Existing international legal principles and provisions need to be applied more consistently in order to offer greater protection for the internally displaced. Nevertheless, a continuing fundamental problem will be the lack of an international legal instrument providing a comprehensive protection and assistance framework for the internally displaced. The CCR urges that the UN establish for the protection of the internally displaced both standards and a mechanism. The Commission on Human Rights should take the lead in this regard, by setting up a working group to draft a declaration on the rights of the internally displaced. Such a declaration should adopt a flexible definition and address root causes of forced displacement.

Interdiction - Governments of many states, motivated by immigration control concerns, engage in a wide variety of practices aiming at preventing certain categories of travellers from making or completing a journey. These practices include the imposition of visa restrictions, the application of carrier sanctions, offshore immigration control and interdiction of boats at sea. The concerns of the CCR with these practices are twofold: firstly, interdiction measures prevent people from reaching a country where they could enjoy asylum, with the result that people are forced to remain in situations of human rights violations or forced to return to such situations. Many of the interdiction measures are in fact clearly and deliberately targeting asylum-seekers from refugee-producing countries or regions. Secondly, interdiction measures lead to the routine harassment of travellers because of their citizenship, nationality, ethnic origin, physical appearance, etc.

During 1998, a group of Sri Lankans in West Africa apparently attempting to sail to North America were returned on a chartered Senegalese airplane to Sri Lanka. The operation was reportedly financed by the US and Canadian governments. It is not clear that there was any impartial, independent and qualified assessment of whether these individuals, apparently of the Tamil ethnic minority which has experienced serious human rights violations, were seeking to exercise their Article 14 right to seek asylum from persecution in other countries. Amnesty International subsequently reported that one of the people thus returned was arrested and tortured in Sri Lanka.

If a mechanism relating to the right to asylum were created, it could address the problems relating to interdiction. In the absence of such a mechanism, already existing mechanisms must be used. Canada should urge the Commission on Human Rights to draw the attention of existing mechanisms to human rights abuses relating to interdiction.

Detention - Refugees and asylum-seekers are detained in many parts of the world in violation of international standards for detention. Detention is used as a measure of deterrence in many countries, including in North America, Europe, Australia, and Hong Kong. Conditions of detention are in many cases below the standards set by the UN. In the context of an examination of detention abuses, special attention should be paid to the abuses suffered by refugees and asylum-seekers.

Gender-related persecution - Many women are persecuted because of their gender. There is inadequate attention to gender-related human rights abuses against women which cause them to flee as refugees, as well as to gender-related human rights abuses against women in flight, in refugee camps and in countries of asylum. Asylum determination procedures do not as a rule take sufficient account of gender-related persecution with the result that women fleeing gender persecution are often refused asylum and returned to situations of human rights violations, despite the fact that human rights bodies have documented the abuses. For example, in 1994 while the UN-OAS Civil Mission in Haiti clearly identified and documented the systematic use of rape as a form of directed persecution, women who had been victims of this form of repression were often refused as refugees by the UNHCR in neighbouring countries. Section 147 (h) of the Beijing Platform for Action calls for the application of international norms to ensure equal access and equal treatment of women and men in refugee determination procedures and the granting of asylum.

Sexual abuse and sexual violence against women refugees in camps, crossing borders, and living as undocumented residents is particularly widespread and needs to be more systematically addressed.

Sexual orientation - Large numbers of people in many parts of the world are victims of grave violations of human rights on the basis of their sexual orientation. Those who flee as refugees are often not granted asylum, because of a serious lack of information about these human rights abuses and because of the existence of prejudice against gay men and lesbians in the countries where asylum is sought. We urge that greater attention be given to these human rights abuses.

Repatriation - Most refugees hope to be able to return home as soon as it is safe to do so. This is also the solution preferred by the international community. While in theory refugee repatriation must be voluntary, in practice refugees in many parts of the world find themselves forced to return home. Sometimes they have inadequate opportunities to inform themselves of the human rights situation at home. In some cases, refugees are granted only a temporary status, which is withdrawn at governments' convenience and without reference to the opinions of the refugees. Refugees often face deterrence measures, including deprivation of the basic necessities of life, in order to persuade them to return. In some situations physical force and intimidation is used to bring about refugee repatriation. The CCR notes that in other to protect the rights of refugees the international community must reinforce the right of refugees to choose when to return home.

Landmines - At least two-thirds of the world's more than 40 million refugees and internally displaced people have fled homes in countries where antipersonnel landmines are widespread. In some conflicts landmines have been used to make an area uninhabitable and to force the local population to move. For refugees landmines constitute a danger during flight, and an obstacle to voluntary repatriation. Returnees are particularly vulnerable as they are likely to be unfamiliar with strategies for minimizing risk from the landmines. The CCR welcomes the coming into force on March 1, 1999 of the treaty to ban landmines. Continuing and increased efforts are required to ensure that all governments ratify the treaty, that existing anti-personnel mines are cleared and that those who have been victims of landmines receive the necessary rehabilitation services.

Right of family unity - Family unity is a fundamental human right. Violations of this right particularly affect refugees who are often forcibly separated from their families, sometimes over extremely long periods of time. The increasing use of grants of temporary asylum without guarantees of family reunification is disturbing. Mechanisms looking at issues relating to family unity should pay particular attention to family separation as experienced by refugees.

Rights of children - Refugee children are among the refugees most vulnerable to human rights abuses. Refugee children are kept in detention, separated from their families and subjected to rape, female genital mutilation, enforced prostitution, hard physical labour in refugee camps and deprived of adequate food, medical care and education. Many refugee children are separated for long periods from their families. Also of concern is the separation of children from primary care-givers who have taken the place of parents in situations of disruption. The CCR urges that further consideration be given to how to apply the principle of " the best interest of the child" in such cases.

Racism - For many refugees, racism, xenophobia and discrimination present significant barriers to enjoyment of rights. The CCR is deeply concerned about the recent rise in racism and racist violence in many parts of the world. Equally of concern is the response of many governments, which have often reduced the rights of refugees and other foreigners rather than denouncing racism and defending the rights of refugees.

The CCR urges increased action to fight racism. For such campaigns to be successful, it is essential that representatives of civil society be involved and that leadership be in the hands of representatives of all sectors of society.

Genocide - Among the world's refugees are survivors of and witnesses to genocides. The international community has failed to prevent the crime of genocide. The CCR recommends that the inadequacy of existing international mechanisms be addressed and the Genocide Convention be reviewed, with the aim of improving the international community's capacity to prevent genocide.

UN inter-agency coordination - There continues to be a need for improved coordination between agencies of the UN. The CCR wishes to emphasize the importance of documentation of human rights abuses and circulation of the information. UN personnel employed by the various agencies are often witnesses to human rights abuses: all should have a responsibility for collecting and transmitting the information. The documentation should be used for early warning, for refugee determination, for assessing compliance with international obligations respecting refugee protection, and for evaluating prospects for repatriation.

As long as there is no UN agency charged with the protection of the internally displaced, inter-agency coordination will be particularly crucial in this area.

The CCR notes the importance of recognizing NGOs as essential partners and involving them in all efforts at coordination.

The following concerns reflect issues recently raised within forums of the Canadian Council for Refugees and do not by any means cover all areas of the world where human rights of refugees are being violated.

Ethiopia/Eritrea: In the context of the conflict between Ethiopia and Eritrea, over 52,000 Eritreans and Ethiopians of Eritrean origin have been arbitrarily detained, subjected to ill-treatment and deported to Eritrea. Incidents have been reported of pregnant women, children, the elderly and even hospital patients being arrested in the middle of the night and imprisoned in harsh conditions for several days before being deported. The mass expulsions have resulted in families being split up. The many Ethiopians married to Eritreans are forbidden from leaving and are forced to watch helplessly while their spouse and children are deported. Most of the deportees either had Ethiopian passports, or had been born or spent their entire working lives there, and considered themselves Ethiopians. These mass expulsions, which violate a whole series of human rights, need to be forcefully condemned.

Colombia: The widespread abuses of human rights in Colombia continue to force the flight of Colombians, many of them as internally displaced persons (there are an estimated one million internally displaced within the country). The targets of this violence are key institutions of civil society (human rights groups; church, justice and peace groups; workers and trade union leaders; peasant and indigenous organizations). There has been comparatively little world attention given to these human rights violations, and the perpetrators have enjoyed near total impunity. The CCR supports the international campaign for people's opinion tribunals to judge and allocate responsibility for the May 16, 1998 massacre in Barrancabermeja, Colombia,
in which Colombian paramilitaries murdered seven people and disappeared 25 others. The UN Human Rights Commission should convene a special session on Colombia to address the human rights violations which have reached unprecedented levels.

Guatemala: Human rights violations in Guatemala have increased significantly since the April 1998 assassination of Bishop Juan Gerardi Conedera two days after he presented the report of the Interdiocesan Project to Recover the Historical Memory (REMHI) which named some of the perpetrators involved in torture, killings, massacres and disappearances.

Burma: Refugees fleeing persecution in Burma do not receive adequate protection in Thailand, where government action seriously violates the rights of Burmese refugees. Camps have been attacked and the refugees' only protection has been to defend themselves. Burmese refugees have been detained and forcibly repatriated. Burman ethnic refugees are required to live in the "Safe Area" which is seriously overcrowded and where security is inadequate. The situation of Burmese ethnic minority refugees is even more precarious: they are in the majority forced to remain in camps along the Thai/Burmese border.

Afghanistan/Pakistan: Afghanistan's long drawn out conflict continues to cause large-scale displacement, both inside Afghanistan and in the neighbouring regions. The new government's lack of respect for the human rights of women can be expected to create new refugees and prevent women refugees from contemplating a return, even if and when the fighting subsides.

India - Kashmir: Serious human rights abuses continue in Kashmir. The Indian Border Security Force (BSF), which began a counter-insurgency operation in 1990, makes systematic use of rape and torture as a means of punishment and intimidation. Thousands of people have fled to 14 poverty-stricken refugee camps within Azad Jammu and Kashmir. The standards of health and hygiene, and educational facilities in the camps are extremely poor. Medical care is substandard in general and particularly deficient for women.

The CCR calls for the UN Commission on Human Rights to create an independent and impartial inquiry into the human rights violations in the Indian State of Jammu and Kashmir and secondly, acknowledging this to be an essential human right, to facilitate the access of the camp-dwellers in AJK to provision of their basic needs.

Turkey: Although Turkey has long been a country of first asylum to many asylum-seekers from Iraq, Iran and Syria, Turkey's geographical limitation on its Refugee Convention obligations means that non-European refugees have not been adequately protected. Since 1994 when new regulations were adopted, there has been a serious deterioration in their situation. Reports have been received of non-European asylum-seekers being arbitrarily rounded up by Turkish police and deported. There are also reports of massacres by Turkish authorities of asylum-seekers trying to cross into Turkey. Some refugees who are accepted for resettlement in other countries are refused Turkish exit permits and are therefore unable to leave the country regularly and remain at risk of refoulement.

Sudan: The continuing war and serious human rights violations force many into flight, particularly among the Southern Sudanese who are persecuted on the basis of both race and religion. Despite the very grave human rights violations that cause huge numbers of Southern Sudanese to flee and the lack of protection afforded them in places of refuge, this region remains one of the forgotten areas of crisis.

Europe: Racism and xenophobia have become ongoing problems for refugees and asylum-seekers and visible minorities in Europe. This comes at a time when the asylum rights of refugees are under attack. Measures which directly or indirectly lead to the refoulement of refugees were reinforced and expanded. These measures include refusing asylum-seekers access to refugee determination procedures (for example on the basis of "safe countries of origin" lists), forced returns to countries of transit (which can lead in turn to refoulement to the country of origin) and application of a false interpretation of the refugee definition. Many asylum-seekers are held in arbitrary and prolonged detention.