MAY 2001
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
Proposed language:
States should reaffirm their
commitment to fully comply with their obligations under the 1951 Convention
Relating to the Status of Refugees and the 1967 Protocol, as well as regional
instruments relating to the protection and promotion of the rights of refugees
and asylum seekers. Those states
that have not ratified these instruments should do so. All countries that have maintained a
geographical limitation incompatible with the nondiscriminatory intention of
the 1967 Protocol should withdraw it.
[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.]
States should take the necessary
measures to ensure that the fundamental principles of non-refoulement and
non-discrimination enshrined in these international refugee instruments are
upheld. No person should be
expelled, extradited, or returned to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected to
torture or persecution on account of his or her race, religion, nationality,
membership of a particular social group, or political opinion.
[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
Proposed language:
States should establish more
effective preventive and early warning strategies to identify and monitor
ethnic conflicts and potential sources of ethnic violence with a view to
preventing the mass displacement of particular populations on the basis of
their race, ethnicity, or nationality.
[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]
States should comply with their
obligations under the 1954 Convention Relating to the Status of Stateless
Persons and the 1961 Convention on the Reduction of Statelessness and other
international instruments dealing with nationality and statelessness
(including, the 1948 Universal
Declaration of Human Rights, the 1966 International Covenant on Civil and Political
Rights, the 1965 International Convention on the Elimination of All Forms of
Racial Discrimination, the 1979 Convention on the Elimination of All Forms of
Discrimination against Women, and the 1989 Convention on the Rights of the
Child), with regards to the right of all individuals not to be arbitrarily
stripped of their nationality, and principles of non-discrimination in the
conferral or denial of nationality.
Those states that have not ratified these and other international
instruments dealing with nationality and statelessness, should do so. States should pay particular attention
to the role that disputed nationality or arbitrary deprivation of nationality
can play in causing situations of mass displacement.
[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
Proposed language:
The right of any individual to
freely leave their own country and seek and enjoy asylum elsewhere should be
upheld. States should ensure that
restrictive measures, such as visa controls, carrier sanctions, and airline
liaison officers do not impede the fundamental 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; ]
Governments should not return
asylum seekers to so-called “safe third countries” where they may
be at risk of direct or indirect refoulement, or other serious human rights
violations
[Santiago Declaration, para. 134; 2nd World
Conference, Declaration, para. 25; Amnesty International, para. 20]
Governments should immediately
cease the practice of excluding asylum seekers on the basis of their country of
origin without a serious consideration of their asylum claim. Such practices could result in
returning refugees to countries where they may face persecution, torture, and
even death.
[Santiago Declaration, para. 134; 2nd World
Conference, Declaration, para. 25; Amnesty International, para. 20]
The right of all trafficked and
smuggled persons to seek asylum and to be protected against refoulement must be
upheld. Migration control measures
aimed at curbing the trafficking and smuggling of persons should not interfere
with governments’ international refugee protection obligations
[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)]
Asylum seekers should not be
penalized for the way in which they enter a territory. Offences related to having been
trafficked or smuggled, including the lack of valid travel documents, should not
adversely affect smuggled or trafficked persons’ asylum claims, neither
should they be grounds for detention.
[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
Proposed language:
As a general rule
asylum seekers should not be detained.
The detention of asylum seekers is an exceptional measure that must be
imposed in a non-discriminatory manner, for a minimal period and must be for
reasons prescribed by law and for specified reasons that are recognized in
international standards.
Detainees should be
informed of the reasons for detention in a language that they understand. All decisions to detain asylum seekers
should be automatically referred for review to a judicial or other competent,
independent, and impartial authority.
Asylum seekers in detention must have access to free and independent
legal counsel, a free and impartial interpreter, UNHCR, and other available
NGOs.
Children under the
age of 18 should never be detained.
Asylum seekers should never be detained in prisons or penal facilities
with convicted criminals, criminal suspects, or those awaiting trial, unless
they are charged or convicted of a criminal offense. Special attention should be paid to the particular needs of
women asylum seekers in detention.
[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
Proposed language:
Governments should
not use or encourage language that promotes xenophobic reactions against
asylum-seekers, refugees, and other foreigners. Politicians and the media should avoid negative stereotyping
and scapegoating of refugees, asylum seekers, and migrants. States should promote the positive
aspects of immigration among the general public, including by stressing the
value of diversity and the contribution made by refugees and migrants to
society.
[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
Proposed language:
Law enforcement
officials should be appropriately trained to respond to racially motivated violence
against refugees, asylum seekers, and migrants. Effective action must be taken to promptly investigate,
arrest, prosecute, and punish those responsible for acts of racist violence
against refugees, asylum seekers, and migrants, including by public officials
and law enforcement officers.
[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
Proposed language:
Governments should
ensure that refugees, asylum seekers, and migrants have full and equal access
to basic economic and social rights as provided in international law, including
social security benefits, health care, education, employment, and adequate
housing, as well as access to the means to secure legal advice and
representation.
[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
Proposed language:
Right to return
The fundamental
right of all refugees to return to their own countries should not be obstructed
on the grounds of race, ethnicity, or nationality. Effective remedies, including restitution or compensation
for property lost, repossessed, or resettled during forcible expulsion should
be sought. Governments should
ensure that nationality disputes giving rise to, or arising from, situations of
forcible expulsions are resolved, in order to facilitate the full and durable
reintegration of refugees back into their own communities.
[Geneva Refugee Expert Seminar, para. 85 and 89 and
paras. 154 –158; Tehran Declaration, Declaration, para. 33]
Local integration
Host countries
should explore possibilities for facilitating the full and permanent local
integration of refugees who are unable or unwilling to return to their own
country, including access to full citizenship and other social, economic, and
cultural, and civil and political rights.
[Santiago Declaration, para. 137; Draft Declaration,
Programme of Action, para. 64]
Resettlement
Countries should
increase their resettlement quotas for those refugees who are unable or
unwilling either to return to their own country or to permanently settle in
their country of asylum.
Resettlement quotas should not be conditional on the number of
spontaneous asylum applications received by countries.
[Dakar Declaration, Recommendations for a Programme of
Action, para. 17]
5)
Measures to
address the inequity in the international response to refugee crises
Proposed language:
States should take
seriously their humanitarian and legal obligations, without discriminating
between the different regions of the world, with regard to the principles of
international cooperation, responsibility sharing, and the resettlement of
refugees in their countries. In
this regard, states should provide additional financial and technical support
to those countries hosting large
refugee populations to enable them to better discharge their humanitarian and
legal obligations.
[Dakar Declaration, Recommendations for a Programme of Action, para. 17; Draft Declaration, Programme of Action, para. 63.]