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Researching International Human Rights Documents.Seminar Researching International Human Rights Documents.Seminar Presentation Transcript

  • Overview of International Refugee Law Training for RAC Refugee Caseworkers 21 June 2008 Kelley Loper [email_address]
  • Overview
    • Core instruments: 1951 Convention; 1967 Protocol; UNHCR Statute
    • Key provisions:
      • Non-refoulement (Art 33)
      • Refugee definition (Art 1)
    • International human rights law
  • Article 33(1) Principle of non-refoulement
    • “ No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”
  • Art 33(2) Exception to non-refoulement
    • “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country ”
  • Art 1(A)(2): Refugee Definition Inclusive elements
    • Outside country of origin
    • Unable or unwilling to claim national protection
    • have a well-founded fear
    • of being persecuted
    • “ for reasons of” race, religion, nationality, membership of a particular social group or political opinion
  • Cessation clauses: Art 1(C)
    • Re-availing of protection or re-establishing in country of origin
    • Acquiring or re-acquiring a nationality that offer real protection
    • Fundamental change of circumstances (note exception of compelling reasons)
  • Exclusion clauses: Art 1(F)
    • 3 categories:
    • committed a crime against peace a war crime, or a crime against humanity
    • committed a serious non-political crime outside the country of refuge
    • guilty of acts contrary to the purposes and principles of the UN
  • Well-founded fear
    • Subjective and objective tests?
    • Approach of the Michigan Guidelines
      • “the assessment of well-founded fear does not comprise any evaluation of an applicant’s state of mind”
      • ‘fear’ as a “forward-looking expectation of risk”
  • Persecution?
    • No definition
    • “inferred that a threat to life or freedom on account of [a Convention ground] is always persecution” [UNHCR Handbook]
    • “Other serious violations of human rights”
    • “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection” (Hathaway)
  • Nexus
    • Persecution “for reasons of” one of the 5 Convention grounds
    • Resource: Michigan Guidelines on Nexus to a Convention Ground
      • Why is the applicant in the predicament?
      • Need not be sole or dominant factor
      • No requirement of motivation
  • Convention grounds
    • Race
    • Religion
    • Nationality
    • Membership of a particular social group
    • Political opinion
  • Membership of a particular social group?
    • Protected characteristics approach
    • Social perception test
    • Examples?
  • 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa
    • “ the term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country …is compelled to leave …”
  • 1984 Cartagena Declaration
    • Definition includes “persons who have fled their country because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.
  • International Human Rights Law as it Pertains to Refugees Training for RAC Refugee Caseworkers 21 June 2008 Kelley Loper [email_address]
  • Relevance of human rights
    • Human rights violations as root causes of forced migration
    • Treatment of refugees in host country and en route
    • Implications for non-refoulement
    • Establishing a well-founded fear of persecution on Convention grounds
  • Core UN human rights treaties
    • 1965 International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)
    • 1967 International Covenant on Civil and Political Rights (ICCPR)
    • 1967 International Covenant on Economic, Social and Cultural Rights (ICESCR)
    • 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  • Core UN human rights treaties
    • 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
    • 1989 Convention on the Rights of the Child (CRC)
    • 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
    • 2006 Convention on the Rights of Persons with Disabilities (CRPD)
  • ICCPR: derogation clause (A 4)
    • “ In time of public emergency which threatens the life of the nation … the States Parties to the present Covenant may take measures derogating from their obligations … to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
  • Non-derogable rights
    • Right to life
    • Right not to be subjected to torture
    • Prohibition of slavery
    • Right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation
    • Right not to be held guilty of a criminal offence which did not constitute a criminal offence at the time it was committed
    • Right to recognition everywhere as a person before the law
    • Freedom of thought, conscience and religion
  • ICESCR – progressive realization (Art 2(1))
    • “ Each State Party to the present Covenant undertakes to take steps … to the maximum of its available resources , with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”
  • ICESCR – general limitation clause (Art 4)
    • “the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”
  • Women
    • Rape and other forms of sexual violence
    • FGM
    • Domestic violence
    • Trafficking
    • Forced marriage
  • Children
    • Convention on the Rights of the Child
    • Principle of the best interests of the child
    • Possible types of persecution:
      • Recruitment of child soldiers
      • Forced labour
      • Trafficking of children
      • FGM