PROTECTING THE HUMAN RIGHTS OF REFUGEES, ASYLUM SEEKERS AND INTERNALLY DISPLACED PERSONS
THE WORLD CONFERENCE AGAINST RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE
A CRITIQUE OF ELEMENTS OF THE DRAFT DECLARATION AND PROGRAMME OF ACTION (A/CONF.189/WG.1/3, 22 February 2001)
A refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Article 1A, 1951 Convention Relating to the Status of Refugees)
There is an inextricable link between racism, racial discrimination, xenophobia and related intolerance, and the forcible displacement and mistreatment of refugees, asylum seekers, and internally displaced persons. Racism is both a cause and a result of forced displacement, and a barrier to its solution.
Forcible displacement has become a global phenomenon of major proportions. An estimated 50 million persons worldwide have been uprooted from their homes. Amongst these some 14 million are refugees and a further 25 to 30 million are displaced within their own countries. As we enter the 21st century, approximately one in every 120 persons worldwide is forcibly displaced.
A large number of these people are the victims of racism, racial discrimination, xenophobia and related intolerance. Racism affects forcibly displaced persons through every stage of the displacement cycle:
Racism in countries of origin: the cause of forcible displacement
The 1951 Refugee Convention clearly recognizes the central role that racism and ethnic discrimination play in causing refugee movements. Article 1A of the 1951 Refugee Convention declares a refugee to be a person who due to a well-founded fear of persecution for reasons of “race, religion, nationality, membership of a particular social group or political opinion” (emphasis addded) is outside of her own country and is unable, or unwilling, to avail herself of the protection of her country.
Large numbers of refugees, asylum seekers, and internally displaced persons have been forcibly displaced on the grounds of their race, ethnicity, or nationality. “Ethnic cleansing” is becoming an alarmingly common occurrence in internal conflicts, resulting both in the mass exodus of refugees into neighboring countries, and in mass internal displacement. Disputes over nationality have also played a part in several contemporary refugee crises, where particular ethnic groups have been arbitrarily stripped of their citizenship prior to their forced expulsion.
Racism in host countries: the treatment of refugees and asylum seekers
Not only do refugees and asylum seekers flee situations of racial and ethnic discrimination and violence, but they increasingly confront such hostility in their countries of refuge. Over the past decade, most notably since the end of the Cold War era when refugees lost their strategic geo-political significance, there has been a global trend of xenophobia and growing hostility towards refugees and asylum seekers. This trend is most notable in the wealthy industrialized states of the West, where there has been a barrage of restrictive policies targeted at asylum seekers, refugees and migrants over the past decade. But even traditionally generous host countries in the developing world, often over-burdened with their own social and economic problems, have become increasingly reluctant to host large refugee populations.
Intolerance and discrimination against refugees and asylum seekers in host countries manifests itself in various forms, these include:
i) restrictive entry policies that obstruct the right of asylum seekers and refugees to freely leave their own countries and undermine the fundamental right to seek and enjoy asylum from persecution. Policies often target particular groups of asylum seekers on the basis of their ethnicity, race, or nationality, with a view to stemming asylum flows from particular countries. These include such measures as:
· visa controls, carrier sanctions, and the posting of immigration officials as “airline liaison officers” in common refugee-producing countries to assist airline staff in pre-departure controls;
· the application of so-called “safe third country” and “safe country of origin” policies that risk either directly or indirectly returning refugees to countries where their lives or freedom would be threatened in violation of the fundamental principle of non-refoulement, and which deny asylum seekers access to a full and fair assessment of their asylum claims with full rights to appeal;
· proposals to respond to refugee crises in regions of origin through mechanisms such as “safe havens” and “in-country protection”, in addition to selective admission of fixed quotas of refugees from particular regions;
Restrictions on legal entry for asylum seekers, refugees, and migrants have forced many to resort to the services of corrupt and dangerous human smuggling and trafficking syndicates that are able to circumvent routine migration controls – often with serious repercussions for the individuals involved.
ii) restrictive interpretations and applications of the 1951 Refugee Convention by host states that have resulted in excluding from international protection some of those most in need, including asylum seekers fleeing persecution by non-state agents and situations of state breakdown; women fleeing persecution by private actors, such as family members, for whom adequate protection and redress is not available in their own country; and individuals or groups fleeing situations of internal conflict and related human rights abuse.
iii) detention and ill-treatment of asylum seekers within host countries. This includes the increasing use of detention as a measure to punish or deter asylum seekers who arrive without valid travel documents, often in violation of Article 31 of the 1951 Refugee Convention which prohibits the punishment of refugees who arrive in a territory without authorization. Asylum seekers are sometimes detained arbitrarily, often for long periods of time in poor conditions, sometimes alongside convicted or accused criminals.
iv) the racist and xenophobic portrayal of asylum seekers, refugees and migrants in the media as criminals, “bogus,” and scroungers, and the manipulation of xenophobic fears by the popular press in a way that feeds anti-refugee and anti-migrant sentiments.
v) the use of xenophobic and racist rhetoric by politicians and public officials, and the manipulation of xenophobic fears and anti-refugee/ anti-migrant sentiments, often for short-term political gain.
vi) violent racist attacks against refugees, asylum seekers, and migrants and their communities, often with the complicit involvement, or tacit approval, of law enforcement agents, without adequate measures to bring the perpetrators to justice.
vii) social and economic discrimination against asylum seekers, refugees and migrants, including in access to housing, education, health care, employment, social welfare and other basic rights.
Racism as an obstacle to resolving situations of forcible displacement
Racism and discrimination based on ethnicity and nationality is also a common obstacle to the resolution of situations of forced displacement.
· Obstacles to return: in numerous situations, countries of origin have blocked refugees from exercising their legitimate right to return to their own country on the grounds of their race, ethnicity, or nationality. Governments try to consolidate the gains of “ethnic cleansing” by obstructing the right to return of refugees and challenging their right to citizenship. The land and property of refugees who were forcibly expelled from their country on the grounds of their race, ethnicity, or nationality, is often resettled by members of the majority racial or ethnic group as a deliberate strategy by governments to obstruct return and reintegration. Refugees who were arbitrarily stripped of their citizenship prior to their expulsion, or whose nationality status was disputed or unclear, have also been denied their right to return on the grounds that they are not bona fide citizens of the country of origin.
· Obstacles to local integration: hostility towards refugees in host countries has proven an obstacle to the full integration of refugees in host communities. Governments, fearing a xenophobic backlash, have opposed the permanent local integration of refugees as a durable solution to long-standing refugee situations.
· Obstacles to third country resettlement: access to third country resettlement as an alternative durable solution for those refugees who are unable or unwilling to return to their own country, or to permanently settle in their country of asylum, is under threat in some parts of the world. Some industrialized states, reportedly in response to a perceived rise in “illegal migration” and increased numbers of asylum seekers, have cut their resettlement quotas.
Inequity in the global response to refugee situations
A further manifestation of racial discrimination in the treatment of refugees, asylum seekers, and internally displaced persons is the inequity in the global response to situations of forced displacement.
· Developing countries continue to bear the brunt of the world’s refugees and internally displaced persons. The majority of refugees worldwide seek asylum in neighboring countries in the South that are frequently burdened with their own social, economic, and political difficulties and are often least equipped to deal with a massive refugee influx. Similarly, the vast majority of internally displaced persons are found in the world’s poorer nations. In comparison, wealthy industrialized states take in a very small proportion of the world’s refugees but have been most vigorous in erecting barriers to restrict the entry of asylum seekers and refugees.
· Although the world’s poorest nations shelter the majority of the world’s refugees, the wealthy nations have been slow to provide adequate financial and other assistance to hosting countries. The Kosovo crisis demonstrated the ability of Western states to respond with speed and efficiency to a major refugee crisis. Unfortunately, these same states have not responded with the same generosity to the ongoing, massive refugee crises occurring in Africa, Asia, and the Middle East, away from the scrutiny of the world’s media and with less geopolitical significance for Western states.
· There is inequity in international efforts to resolve refugee crises. Once again, the Kosovo crisis demonstrated the ability of Western states to seek rapid solutions to refugee crises and to facilitate the early return of refugees to their own country. Elsewhere in the world, particularly in Africa, Asia and the Middle East, hundreds of thousands of refugees languish for years in a state of limbo in makeshift camps, with little prospect of a speedy solution to their plight. Countries of origin and host countries require financial assistance to facilitate durable return, reintegration, and local settlement programs. At the same time, wealthy nations are cutting their overseas development budgets and reducing resettlement quotas. The burden of responsibility for resolving protracted refugee crises lies with developing nations, while the industrial states fail to do their share.
COMMENTS AND RECOMMENDATIONS ON THE DRAFT DECLARATION AND PROGRAMME OF ACTION
Section XII on Asylum Seekers, Refugees and Internally Displaced Persons
Human Rights Watch proposes the incorporation of the following elements into the section of the Draft Declaration and Programme of Action relating to asylum seekers, refugees, and internally displaced persons.
1. Reference to the 1951 Convention Relating to the Status of Refugees and regional instruments on refugee protection, with particular reference to principles of non-refoulement and non-discrimination enshrined in these instruments
[Regional Conference of the Americas, Santiago, Draft Declaration and Plan of Action, WCR/RCONF/SANT/2000/L.1/Rev.4 20 December 2000 (hereafter Santiago Declaration) para. 133; African Regional Preparatory Conference, Dakar, Declaration and Recommendations for a Programme of Action, 22-24 January 2001 (hereafter Dakar Declaration) Declaration, para. 31; European Conference against Racism, Strasbourg, October 2000, Draft Political Declaration, WCR/IC/2001/Misc.4 (hereafter Strasbourg Declaration), Conclusions, para. 26; Report of the Expert Seminar on Racism, Refugees and Multi-Ethnic States, Geneva, May 2000, A/CONF.189/PC.1/9 (hereafter Geneva Refugee Expert Seminar) para. 143; Amnesty International’s Recommendations to the Governments for the WCAR, WCR/IC/2001/Misc.3/Add.1 (hereafter Amnesty International) para. 19; Commission of the Churches on International Affairs of the World Council of Churches, WCR/IC/2001/Misc.3 (hereafter World Council of Churches), para. 2.]
[Santiago Declaration, para. 134; 1983 Second World Conference to Combat Racism and Racial Discrimination, Declaration, E/CN.4/1999/WG.1/BP.1 (hereafter 2nd World Conference), Declaration, para. 25; Amnesty International, para. 20]
2. Measures to address racial discrimination and ethnic intolerance and violence as root causes of refugee flows
[Geneva Refugee Expert Seminar, paras. 129 – 133; Report of the Central and Eastern European Regional Seminar of Experts, A/CONF.189/PC.2/2, 14 August 2000 (hereafter Central and Eastern European Experts), para. 70; World Council of Churches, para. 2]
[Geneva Expert Seminar on Remedies, 16-18 February 2000, A/CONF.189/PC.1/8 (hereafter, Geneva Expert Seminar on Remedies), Recommendations of the Seminar, para. 32.; Central and Eastern European Experts, Recommendations of the Seminar, para. 60]
3. Measures to address racism and xenophobia against refugees and asylum seekers in host countries
i) Freedom of movement and the right to seek and enjoy asylum
[Geneva Refugee Expert Seminar, para. 147 and 148; Geneva Expert Seminar on Remedies, Recommendations of the Seminar, para. 31; Dakar Declaration, Declaration, para. 13; Tehran Declaration, Declaration, para. 7; Strasbourg Declaration, Conclusions, para. 26; ]
[Santiago Declaration, para. 134; 2nd World Conference, Declaration, para. 25; Amnesty International, para. 20]
[Santiago Declaration, para. 134; 2nd World Conference, Declaration, para. 25; Amnesty International, para. 20]
[Geneva Expert Seminar on Remedies, Recommendations of the Seminar, para. 29; Human Rights Watch and ECRE, The Human Rights of Refugees and Migrants: A Critique of the Draft General Conclusions of the European Conference Against Racism (http://www.hrw.org/campaigns/race/print-genconc.htm) (hereafter referred to Human Rights Watch/ ECRE)]
[Geneva Refugee Expert Seminar, para. 146; Geneva Expert Seminar on Remedies, Recommendations of the Seminar, para. 29; Amnesty International, para. 20]
ii) Detention of asylum seekers in host countries
[Draft Declaration and Programme of Action of the Conference, A/CONF.189/WG.1/3, 22 February 2001 (hereafter referred to as the Draft Declaration), Programme of Action, para. 65; Strasbourg Declaration, Conclusions, para. 26; Geneva Expert Seminar on Remedies, Recommendations of the Seminar, paras. 30 and 33; Geneva Refugee Expert Seminar, para. 146; Amnesty International, para. 24]
iii) Portrayal of refugees and asylum seekers in the media and by politicians
[Strasbourg Declaration, Conclusions, para. 26; Dakar Declaration, Declaration, para. 14; Geneva Refugee Expert Seminar, para. 150; Santiago Declaration, para. 36 and 120; Amnesty International, para. 22; Human Rights Watch/ ECRE; World Council of Churches, para. 2]
iv) Racially motivated violence against refugees, asylum seekers, and migrants
[Santiago Declaration, para. 35 and 122; Dakar Declaration, Recommendations for a Programme of Action, para. 23; Geneva Expert Seminar on Remedies, Recommendations of the Seminar, para. 22; Amnesty International, para. 21; Human Rights Watch/ ECRE]
v) Social and economic discrimination against refugees, asylum seekers, and migrants
[Strasbourg Declaration, Conclusion, para. 27; Geneva Expert Seminar on Remedies, Recommendations, para. 28; Human Rights Watch/ ECRE]
4) Measures to addrdss racism and discrimination as an obstacle to the resolution of refugee situations
Right to return
[Geneva Refugee Expert Seminar, para. 85 and 89 and paras. 154 –158; Tehran Declaration, Declaration, para. 33]
[Santiago Declaration, para. 137; Draft Declaration, Programme of Action, para. 64]
[Dakar Declaration, Recommendations for a Programme of Action, para. 17]
5) Measures to address the inequity in the international response to refugee crises
[Dakar Declaration, Recommendations for a Programme of Action, para. 17; Draft Declaration, Programme of Action, para. 63.]