Supervision of IRL

Development of the Supervisory Bodies of IRL

Perhaps the primary interest of all states is their national security. Inextricably linked with security issues are matters related to immigration, insofar as refugees, immigrants, even tourists, challenge the power of the State to define and control the population within its territory. IRL in its initial form and to the extent that it seeks to create binding obligations upon states constitutes what James Hathaway refers to as: a humanitarian exception to the protectionist norm.

In 1943 the Allied powers created the United Nations Relief and Rehabilitation Association (UNRRA). The allied powers provided the Association with logistical and material support. UNRRAs mandate was to assist in the relief and rehabilitation of devastated areas and to assist all those individuals and groups who were displaced, not simply those who were considered as refugees. The United States of America provided 70% of UNRRAs budget.

In 1947 UNRRA was dissolved and replaced by the International Refugee Organization (IRO). The IRO was created as a non-permanent UN agency, with a mandate of three-years. With its creation, greater emphasis was placed on threats to personal freedom as a basis for flight. The IRO was concerned not merely with repatriation as was UNRRA, but was also involved in the identification, registration and classification, care and assistance, transport, resettlement in third countries, and re-establishment of refugees. The IRO exclusively assisted European refugees until its dissolution in 1952. Despite its closure, there was a general agreement amongst members of the international community for the need to continue cooperating in dealing with refugee issues. Disagreement, however, raged over the objective such cooperation should fulfill.

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UNHCR

Cold War tensions permeated all UN discussions regarding the formation of a new international organization mandated to assist refugees. Simultaneously, negotiations on the development of an instrument of international law focusing on refugees were taking place. Like its predecessor the IRO, the Office of the United Nations High Commissioner for Refugees (UNHCR) was established as a subsidiary organ of the United Nations General Assembly (UNGA). Its mandate was a temporary one, lasting for three years, although it was eligible for renewal provided that such a renewal was passed by a UNGA resolution.

Article 2 of the UNHCRs Statute, located in UN General Assembly resolution 428(V) of 14 December 1950, describes the Offices mandate:

The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting governments and, subject to the approval of the governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.

As an international organization, the UNHCR works entirely within the legal framework of the RC. It is clear from the UNHCRs mandate that the Office is to provide humanitarian and legal protection, rather than political protection. According to the Offices supporters, this neutrality allowed it to work effectively amidst the tensions of the Cold War. On the other hand, many question the extent to which a non-political body can effectively deal with highly politically entrenched issue-area of refugees.

Limitations

The financial and political limitations that constrained the UNHCR in its early years continue to do so. Unlike other UN agencies that are automatically funded in the budget approved by the UNGA, UNHCR is obliged to seek voluntary contributions from states and is dependent upon a small UNGA budget and on a small emergency fund. Its legal existence and fiscal support must be renewed annually by a UNGA vote. Its status as a subsidiary organ of the GA means that it can never truly shed the grip of state influence and as a result its independence is seriously hampered. The inherent links between a states sovereignty and its control over entry and exit of its territory play out in the Offices mandate to the extent that the UNHCR must be formally invited by host governments into their territory in order to carry out assistance. The end result is a situation in which the UNHCR is obliged to be non-political in its operations and yet is, at the same time, governed by political interests.

Protection and the Pursuit of Durable Solutions

In addition to providing humanitarian assistance and protection, the UNHCR is mandated to seek durable solutions. The Executive Committee of the UNHCR has repeatedly affirmed the importance of voluntary repatriation when feasible, as the preferred durable solution to refugee problems, and has called upon the High Commissioner and States to continue their cooperative efforts to achieve this solution whenever feasible." In principle, most States and individuals would affirm the claim that all individuals have the right to return to their homeland. The UNHCR verifies this implicit consensus: "In international human rights law, the basic principle of voluntary repatriation is the right to return to one's country." However, difficulties arise when individuals are repatriated to their country of origin when there has not been a fundamental change in circumstances, to the extent that the primary causes of refugee flight have been addressed and resolved.

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Executive Committee of the High Commissioner's Program (ExComm)

The ExComm, comprised of 66 government representatives, was created so as to address gaps in the protection of refugees. The body meets annually to discuss current issues in efforts of international protection and issues conclusions. These conclusions lack the force of law yet nonetheless carry weight as they represent a consensus achieved in an international forum.

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Supervision by Human Rights Treaty Bodies

While the UNHCR is the body created by the RC, it is not a treaty body in the same sense as is the Human Rights Committee, for example. Under the RC, there is no right to individual communication and there is no body authorized to deal with such communications, even if they were permitted. The RC refers to the ICJ as the appropriate forum for the resolution of dispute. However, individuals do not have standing before the ICJ. Furthermore, no state has ever made use of this mechanism. Consequently, the importance of IHRL for refugees and asylum-seekers, both in terms of standard setting and in terms of supervision, cannot be over-stated.

Soft Law versus Hard Law

A strictly positivist interpretation of the views of human rights treaty bodies would conclude that they are not legally binding and that their status is no more than that of a mere recommendation to the extent that the various treaty bodies have no means of enforcing their decisions. However, this view is inaccurate. Treaty bodies are comprised of legal experts and as such their writings are considered within IL as a subsidiary source of law. Moreover, the various treaty bodies are established by their respective treaties, or in optional protocols. Therefore, states party to these treaties, or to these optional protocols, are indirectly bound to comply with treaty body decisions. The views of such bodies are a representation of the provisions of the treaty and as such, in order to act in good faith and comply with treaty obligations, states must comply with their recommendations. If a state refuses to comply, they could be deemed to have acted in violation of the customary legal principle of pacta sunt servanda, (i.e. that a state must act in accordance with their treaty obligations).

Similarly, an obligation conferred upon states by IL is the obligation to provide effective domestic remedies for individuals. If an individual is seeking redress with one of the treaty bodies, it is evident that such domestic remedies do not exist, given that such bodies require the exhaustion of domestic remedies prior to consideration of an individual petition. Consequently, the state has failed in one of its primary obligations. This acts as a motivation for states to make good by complying with the treaty bodys judgements.

Enforcement

Empirical evidence exists pointing to states willingness to comply with treaty body judgments. Frequently their views have resulted in changes being made in national legislation and state practice. In several cases, individuals have been released from prison and compensation has been paid to victims of human rights violations. Should a state refuse to comply, the relevant body can publish this fact, thereby employing the mobilization of shame technique. Given that the world is increasingly interconnected and interdependent, states are not keen to be blacklisted. The politics of shame has proven to be effective.

In addition, the Inter-American Commission and Court of Human Rights, the European Court of Human Rights, and the newly established African Court on Human and Peoples Rights produce legally binding interpretations of the various rights enshrined in international human rights treaties as well as in regional human rights treaties, such as the ACHR, the ECHR, and the AfCHPR. When states violate human rights, these courts can hold them accountable. In addition, these courts have been successful in turning over national decisions to reject a particular applicants claim for refugee status. States obligations under IRL are being supervised by these regional arrangements, providing additional protection to asylum-seekers and refugees.

Individual Redress at the Universal Level

Just as the rights of refugees are supervised by human rights treaty bodies, these same bodies provide refugees with a means to seek vindication of violations committed. Of particular relevance to the protection of refugees rights is the individual complaint procedures. Individual complaint procedures differ under the various human rights conventions. However, there are three requirements that all conventions have in common: 1) the alleged violating state must have ratified the Convention invoked by the individual; 2) the rights allegedly violated must be covered by the Convention concerned; and 3) proceedings before the relevant body may only be initiated after all domestic remedies have been exhausted. Furthermore, individual petitioners must themselves be the victim or are representing the victim. Claims cannot be anonymous or manifestly ill-founded. These same requirements are reiterated in the procedures for individual redress at the regional level.

Individual communications are allowed under CAT and CERD, and the Optional Protocols for ICCPR and CEDAW. In the case of the ICCPR and the CEDAW, a state recognises the Committees competence by becoming a party to the Optional Protocol. In the case of the CAT and the CERD, states recognise the Committees competence by making an express declaration under Articles 22 and 14 respectively. Given that human rights treaties oblige states to respect, protect, and ensure the rights not simply of their citizens, but of all individuals within their jurisdiction, refugees may also submit complaints against an asylum state provided that the rights they claim to have been violated are the rights enshrined in the appropriate treaty.

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Regional Supervisory Mechanisms

The regional standards discussed in section 3.0 are supervised by regional bodies, whose mandates it is to ensure state compliance with the respective treaties. As already mentioned, refugees are entitled to those human rights enshrined in the universal treaties, and regional conventions and charters. In addition, refugees enjoy rights, which attach to their particular status as refugees and asylum-seekers. Regional supervisory bodies enjoy a broad mandate to supervise the implementation of human rights in general. However, they are also responsible for interpreting conventions and charters under their jurisdiction in such a way as to be to the advantage of refugees and asylum-seekers. With the exception of the Bureau for Refugees at the African level, there are no regional bodies specifically devoted to refugee issues.

African

In regards to the protection and promotion of the rights and freedoms of refugees and asylum-seekers, the most important institution at the African level is the African Commission on Human and Peoples Rights and the newly established African Court for Human Rights. The New Partnership for Africas Development (NEPAD) is also important. Although it does not deal explicitly with refugees and asylum-seekers, it does place an obligation upon states to address the root causes of conflict by strengthening regional and sub-regional institutions dealing with the prevention of conflict. Since conflict is one of the major root causes of refugee flows, the obligations imposed by NEPAD upon states enhance the protections afforded to asylum-seekers and refugees.

African Commission and the African Court on Human and Peoples Rights. As already mentioned the protection of refugees and asylum-seekers cannot be appreciated without recourse to human rights instruments. Of particular importance in this regard is the African Commission on Human and Peoples Rights, which is the supervisory body of the African Charter of Human and Peoples Rights.

Under the African system, an individual can lodge a complaint under the African Charter of Human and Peoples Rights. The complaint is submitted to the Charters supervisory body: the African Commission on Human and Peoples Rights. After due consideration, the Commission may submit the claim to the Assembly of Heads of State who then determines the appropriate course of action. The Commission is a quasi-judicial body, not unlike the HRC. Its status and mandate however, severely limits its power as a human rights enforcer. The Commission's functions are limited to examining state reports, considering communications alleging violations, and interpreting the Charter at the request of a State party, the OAU, or any organization recognized by the OAU.

However, the scantiness of the enforcement and compliance control mechanisms at the African level have been significantly improved with the coming into force in January 2004, of the 1998 Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights. According to Article 3 of the Protocol, the Court will be competent to interpret the Protocol, the AfCHPR, and any other human rights instrument ratified by the states concerned. Like the Inter-American Court, the African Court has both advisory and judicatory jurisdiction.

Relevant Jurisprudence. Given that the Court has only recently entered into force, it is not surprising that only limited jurisprudence has been developed. Prior to the establishment of the Court it was the Commission who was responsible for developing and publishing recommendations. A case in point is when the Commission found the Government of Rwanda to have been in breach of the African Charter when it expelled Burundian refugees on the basis of their nationality and without a fair trial before a competent tribunal. Likewise, the Zambian Government was found by the Commission to be in breach of their obligations under the Charter by expelling, en masse without due process, West African nationals. In South Africa in the year 2000, the Durban High Court decided that the Governments practice of refusing refugee status on the basis of their safe third country policy was in breach of their obligations under the RC and the 1969 OAU Convention. South Africa was therefore obliged to withdraw the policy. Other decisions at the domestic level in South Africa have reinforced the asylum-seekers right to receive written reasons when denied refugee status and also have confirmed the importance of establishing fair administrative asylum procedures consistent with the RC and the 1969 OAU Convention.

OAU Bureau for Refugees. At present, the Bureau for Refugees, formally the Bureau for the Placement, Education and Training of Refugees, is the only organization specifically dedicated to refugee issues. However, the Bureaus ability to deal with the complex situation and to provide genuine assistance to refugees is hampered by chronic under-funding, understaffing, and institutional politics. The Bureau is seriously constrained in its role as a representative of refugees due to its location in the Political Department of the OAU Secretariat. Its ability to issue criticisms of its member states is limited as is its ability to urge member states to adhere to their obligations under the 1969 Convention.

Inter-American

At the inter-American level, the two most important institutions in matters of human rights are the Inter-American Commission for Human Rights and the Inter-American Court. The Commission is characterised by a unique dual role, which reflects its origin as a Charter-based body, later transformed into a treaty body when the American Convention came into force. As an OAS Charter organ, the Commission performs functions in relation to all member states of the OAS (Article 41 Convention) and as a Convention organ its functions are applicable only to states party to the Convention. The Commission can bring a case to the Inter-American Court of Human Rights only under the American Convention and not under the American Declaration. However, it can investigate and issue recommendations to states based upon the Declaration.

Jurisdiction. The Inter-American Court has both contentious and advisory jurisdiction. The Courts advisory jurisdiction is unique in several ways. In addition to the Inter-American Commission and other authorized bodies of the OAS, all OAS member states, whether Party to the ACHR or not, and even if they have not recognised the jurisdiction of the Court over contentious matters, have the right to request advisory opinions. Furthermore, OAS member states may consult the Court regarding the interpretation not only of the Convention but also of any other treaty pertaining to the protection of human rights in the Americas. They may also consult the Court on the compatibility of their domestic laws, bills and proposed legislative amendments.

Individual Petition. Under the Inter-American system and according to Art.44 of the IACHR, an individual can lodge a complaint with the Inter-American Commission on Human Rights, who can, according to the ACHR, submit the complaint to the Inter-American Court of Human Rights. This procedure is unconditional, meaning that it does not require specific state consent. The petitioner in this case does not have to be the victim. The Inter-American Commission and Inter-American Court are the supervisory bodies for both the ACHR as well as the American Declaration on the Rights of Man. Asylum-seekers and refugees may then submit a claim on the basis of any of the rights enshrined within these two instruments. While the American Declaration was not intended to be a treaty and thus binding in law, according to the Inter-American Court's Advisory Opinion No.10, the Declaration is relevant as an interpretative tool in regards to the ACHR and the Charter of the OAS, both of which are treaties.

Like the European system, an individual applicant under the Inter-American system must submit his or her petition within six months of the delivery of the domestic remedy. However, in the case of Velasquez-Rodriguez, the Inter-American Court stated that for the rule of prior exhaustion of domestic remedies to be applicable, the domestic remedies of the State concerned must be available, adequate and effective in order to be exhausted. The Court also opined that upon the party raising that allegation of non-exhaustion because of the unavailability of due process in the State, the burden of proof shifts to "the State claiming non-exhaustion and it has an obligation to prove that domestic remedies remain to be exhausted and that they are effective."

Country Reports. In addition, the Inter-American Commission issues country reports in order to supervise the implementation of rights at the domestic level. Their 2000 Report on Canada specified the situation of refugees and asylum-seekers in Canada. The Commission expressed concern in regards to the status of non-documented asylum-seekers in Canada and also in regards to the lack of appeals process. In addition, the Commission is authorized to conduct on-site visits and has in the past visited refugee populations. Their visits to refugee detention centres have included ones in the United States of America (1962), Honduras (1982), Mexico (1983), French Guyana (1988) and Canada (1997).

Key Cases at the Inter-American Level. The following cases are key in terms of the development of human rights jurisprudence within the Inter-American system. They provide insight into the scope and depth of the rights and freedoms to which all individuals, refugees and asylum-seekers alike, are entitled.

• Velasquez Rodriguez: violation of Articles 1,4, 5, 7 ACHR
• Bamaca Velasquez: violation of Articles. 4, 5, 7, 8, 25, 1 of ACHR and Article 3 common to the Geneva Conventions
• Loayza Tomaya: violation Articles 5, 7 ACHR. Interestingly, in this case the Court attempted to define degrading treatment.
• Cesti Hurtado: violation of Art. 7(1)(2)(3) ACHR
• Las Palmeras: violation of Art.8 and 25; right of family members of victim to fair trial
• Sanchez: Violation of Art. 1(1), 4,(1) 5(1)(2), 7(1)(2)(3)(4)(5)(6), 8 & 25 ACHR
• Constitutional case Against Peru: violation Art.25
• La Tablada case: Violation of Art. 4, 5(2), 8(2), 25(1) ACHR; relevance of IHL to IHRL and its applicability within human rights courts.
• Juan Carlos Abela v. Argentina: Violation of Art. 25, 27(1), 29(b); no violation of common Art. 3 to the Geneva Conventions; IHL as lex specialis.

European

While various institutions designed to supervise the implementation of state obligations exist at the European level, the most important in terms of the protection of the rights of refugees and asylum-seekers is the European Court of Human Rights. Its importance is underscored by its competence to receive individual petitions and is demonstrated by the significant jurisprudence it has produced.

European Court of Human Rights. The Court enjoys both contentious and advisory jurisdiction relating to the rights enshrined within the European Convention of Human Rights. The ECHR does not enshrine a right to asylum. Consequently, the majority of cases heard before the Court involving refugees and asylum-seekers allege violations of Article 3 of the ECHR, the prohibition of torture, cruel, inhuman and degrading treatment. As this is a non-derogable right under the ECHR, the Court has found in a number of occasions against states that sought to return an asylum-seeker to a country where there was a risk of torture or cruel, inhuman and degrading treatment. The Court has found that such an action would be tantamount to violating the principle of non-refoulement.

Individual Petition. Under the European system, an individual may bring a complaint under Art.34 of the ECHR. Prior to the entry into force of Protocol XI (1999), the individual complaint mechanism was optional, subject to state consent. However, it is now mandatory. Under the ECHR, a group of individuals or NGO may also lodge a complaint, provided that it is individualized. An NGO may, therefore, submit a complaint on behalf of a refugee or asylum-seeker. However, there is no right to collective complaints of generalized violations.

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