University of Minnesota




Report on Terrorism and Human Rights, Inter-Am. C.H.R., OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (2002).


 

 

1. Rights to Freedom of Assembly, Association, and Conscience and Religion

358. As noted in Part II(B) concerning terrorism in the context of international law, modern terrorism has evolved to a significant extent through the activities of non-state actors composed and coordinated on a national and, increasingly, international basis, as well as through a growing network of links between such groups.[829] As a consequence, formal and informal associations of individuals that are suspected fora for the coordination and perpetration of terrorist activities may become the targets of investigation, surveillance and other forms of intervention by the state. This reality, together with the ideological basis upon which the work of such groups and associations may often be based, have potential implications for the right to freedom of assembly,[830] the right to freedom of association,[831] and, in the case of faith-based groups or organizations, the right to freedom of conscience and religion,[832] as well as other rights that may be intimately connected with these protections.[833]

359. In particular, the rights to freedom of assembly and of association have been broadly recognized as significant individual civil as well as political rights that protect against arbitrary interference by the state when persons choose to associate with others, and are fundamental to the existence and functioning of a democratic society.[834] The protection of such rights may entail not only the obligation of a state not to interfere with the exercise of the right of assembly and of association, but in certain circumstances may require positive measures on the part of the state to secure the effective exercise of the freedom, for example by protecting participants in a demonstration from physical violence by individuals who may hold opposite views.[835]

360. These rights may, by their terms, be restricted, but only strictly in accordance with certain conditions. In the case of the rights to freedom of assembly and of association, any limitations must be established by or in conformity with laws that are enacted by democratically elected and constitutionally legitimate bodies and are tied to the general welfare.[836] Such rights cannot be restricted at the sole discretion of governmental authorities.[837] Moreover, any such restriction must be in the interest of national security, public order, or to protect public health or morals or the rights or freedoms of others, and must be enacted only for reasons of general interest and in accordance with the purpose for which such restrictions have been established.[838] The restrictions must additionally be considered necessary in a “democratic society,” of which the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law are fundamental components.[839] Similarly, while the rights to freedom of assembly and of association are not designated to be non-derogable, any measures taken by states to suspend these rights must comply strictly with the rules and principles governing derogation including the principles of necessity and proportionality, as discussed in Part II(B).

361. The Inter-American Court of Human Rights has similarly specified that the right to freedom of conscience and religion is one of the foundations of a democratic society and that “[i]n its religious dimension, it constitutes a far-reaching element in the protection of the convictions of those who profess a religion and in their way of life.”[840] This right is also intimately connected with the right not to be subjected to discrimination of any kind, which includes discrimination based upon religious affiliation.[841] Similar to the rights to freedom of assembly and of association, any permissible restrictions placed upon the right to freedom of conscience and religion must be prescribed by law and must be necessary to protect public safety, order, health or morals, or the rights or freedoms of others.

362. Also notable in this connection is the fact that the right to freedom of conscience and religion is included among the non-derogable rights listed in Article 27(2) of the American Convention and therefore may not be suspended at any time, including times of war or other emergency. In this connection, international humanitarian law applicable in situations of armed conflict likewise recognizes the fundamental nature of the right to conscience and religion to persons protected under that law, having included protections in such fundamental provisions as Article 75(1) of Additional Protocol I and Article 4(1) of the Additional Protocol II. Both of these provisions mandate that persons falling under the terms of those treaties in the context of international or non-international armed conflicts are entitled to respect for their “person, honour, convictions and religious practices.”[842]

363. In the context of these rules and principles, the Commission considers it important to emphasize that measures to prevent and punish terrorism must be carefully tailored to recognize and guarantee due respect for these rights. This would generally prohibit states from, for example, banning participation in certain groups, absent evidence that clearly raised a threat to public safety or security sufficient to justify an extreme measure of this nature. These protections similarly require states to ensure that laws or methods of investigation and prosecution are not purposefully designed or implemented in a way that distinguishes to their detriment members of a group based upon a prohibited ground of discrimination, such as religious beliefs, and to guarantee that methods of this nature are closely monitored and controlled to ensure against human rights infringements.[843]

364. States must also guard against the possibility that interference by the state and its institutions with the exercise by persons of their rights to freedom of assembly, association and conscience and religion, and its failure to protect against such interference by non-state actors, may give rise to a chilling effect by which individuals are discouraged from expressing or otherwise exercising their rights in these areas.[844]

2. Rights to Property and Privacy

365. As observed in Part I(B) of this report, among the measures initiated by states to respond to the increased globalization of terrorist threats have been enhanced measures by states to trace and freeze funds and other financial or economic resources of persons implicated in terrorism or entities owned or controlled directly or indirectly by such persons, as well as the sharing of such information among authorities within and between states. Measures of this nature in turn have potential implications for the right to property and the right to privacy as prescribed in the American Declaration,[845] the American Convention[846] and other international human rights instruments.[847]

366. While identifying and obstructing the financial and other resources of terrorist groups has been widely recognized as an important strategy in impeding their operations,[848] the fact that the use and enjoyment of property is protected under numerous international human rights instruments must inform the development of strategies of this nature. Property has been defined by the Inter-American Court for the purposes of the American Convention on Human Rights to encompass

those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.[849]

367. As with other fundamental rights, effective protection of the right to property necessitates ensuring that the right to use and enjoy property is given effect through legislative and other means, and that simple and prompt recourse is available to a competent court or tribunal for protection against acts that violate this right.[850] While the use and enjoyment of property may be subordinated to the interest of society, any measures of this nature may only be taken by law, and the propriety of such measures must, as with all rights protected in the Hemisphere, be guided by the just demands of the general welfare and the advancement of democracy.[851] Similarly, while persons may be deprived of their property by the state, this can only be done for reasons of public utility or social interest, and in the cases and according to the forms established by law, and require just compensation to be paid upon such deprivation.[852]

368. In this latter connection, the taking of property for reasons of public utility or social interest that gives rise to a duty to compensate should be distinguished from controls upon the use or enjoyment of property, including those arising in connection with criminal proceedings such as sequestration or confiscation. In the latter instance, while each case must be evaluated in its own circumstances in light of the principles of proportionality and necessity, restrictions on the use or enjoyment of property may well be necessary in the general interest, to effectively investigate and deter criminal activity and to ensure that the property does not provide criminal defendants with advantages to the detriment of the community at large. By their nature, these types of controls do not entail a duty to compensate.[853]

369. In the context of an armed conflict, international humanitarian law prescribes detailed provisions governing the treatment of property in international armed conflicts, the terms of which parallel in certain respects to human rights protections in this area. Article 18 of the Third Geneva Convention, for example, governs the treatment of the personal property of prisoners of war at the beginning of their captivity, Articles 58 to 68 of the Third Geneva Convention prescribe detailed provisions concerning the financial resources of prisoners of war, and Article 119 regulates the treatment of the property of prisoners of war in the context of their release and repatriation. Articles 97, 98 and 128 of the Fourth Geneva Convention similarly govern the entitlement of civilian internees to retain articles of personal use, to receive regular allowances, and to take with them their personal effects, correspondence and parcels in the event of their transfer. These provisions are supplemented by the general rule under international humanitarian law prohibiting the attack, destruction, removal or rendering useless of objects indispensable to the survival of the civilian populations such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.[854] Certain international humanitarian law instruments and provisions also specifically prohibit the targeting of cultural objects and places of worship.[855]

370. Compliance with these basic norms in the context of anti-terrorism initiatives has particular significance where it may be difficult to establish connections between personal assets and terrorist activities. While states may have some latitude in developing and implementing strategies that target assets believed to be used for or to have resulted from terrorist-related activities, any actions taken must be prescribed by law, have an objective and reasonable basis in fact or evidence, and be executed under judicial supervision. Proper controls are particularly important in circumstances where criminal charges, extradition, or other serious consequences for the individual concerned may arise out of property-related investigations.[856]

371. There may also be occasions in which interference by the state in a person’s property interests may implicate his or her right to privacy.[857] This may arise, for example, where the tracing or freezing of financial assets involves surveillance and data collection by the state respecting a person in the course of a criminal or other investigation or proceeding, as well as the possible exchange of personal information between law enforcement agencies, governments or other authorities in possession of such information. Advances in modern technology have rendered certain forms of communication, such as cellular telephones and electronic mail, particularly susceptible to improper surveillance by state authorities. It has been recognized in this regard that individuals may have vital privacy interests in personal information gathered by the state concerning their status or activities.[858] States are therefore required to conduct their initiatives in this regard in compliance with prevailing norms and principles governing the right to privacy. This encompasses ensuring that the collection and use of personal information, including any limitations upon the right of the person concerned to access that information, is clearly authorized by law so as to protect the person concerned against arbitrary or abusive interference with privacy interests, and accordingly that judicial supervision is available to guard against abuses of these legal requirements.[859]

3. Right to Participate in Government

372. Finally, in light of the central role that democratic principles and institutions play in the inter-American system, mention must be made of the right to participate in government, prescribed in both Article XX of the American Declaration[860] and Article 23 of the American Convention.[861] As this Commission has long recognized and as historical experience in this Hemisphere has demonstrated, governments derived from the will of the people, expressed in free elections, are those that provide the soundest guarantee that the basic human rights will be observed and respected.[862] So significant have OAS member states considered the right to representative government for the foundation of human rights protections that it is counted among those rights that may not be suspended, even in states of emergency.[863]

373. Under all circumstances, therefore, including during times of armed conflict, member states must ensure for their citizens the political rights and opportunities prescribed under the inter-American human rights instruments, subject only to such regulations that may be based upon age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings. Indeed, it is only through the protection of these rights that the effective protection through the rule of law of fundamental freedoms can be guaranteed. As the Inter-American Court of Human Rights has observed, “[i]n a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.“[864] Of particular pertinence to full and free participation in elections and other democratic activities, states should avoid legislation that broadly criminalizes the public defense (apologia) of terrorism or of persons who might have committed terrorist acts without requiring an additional showing of incitement to lawless violence or to any other similar action should be avoided.[865]

374. The rights and freedoms canvassed above are among the additional, though by no means exhaustive, human rights protections which may have significant implications for the means and methods employed by states against terrorism. The Commission wishes to emphasize in this respect the overriding significance of the principles of necessity, proportionality, humanity and non-discrimination in all circumstances in which states purport to place limitations on the fundamental rights and freedoms of persons under their authority and control.

H. Migrant Workers, Asylum Seekers, Refugees and other Non-Nationals

375. Among those persons most vulnerable to human rights violations in the development and execution of counter-terrorist measures are persons who find themselves in the territory of a state of which they are not nationals, including migrant workers, refugees and those seeking asylum from persecution. Experience indicates that states’ domestic and international initiatives in fighting terrorism often have a direct and negative impact on the rights and interests of non-nationals. For example, as part of their anti-terrorism strategies, states frequently use their immigration laws to arrest, detain and deport non-nationals, adopt new and more restrictive immigration control measures that further limit the conditions under which non-nationals may enter or remain in the states’ territory, and gather and share private information concerning non-nationals. Some of these measures arise from states’ commitments under multinational anti-terrorism instruments, which frequently address matters such as cooperation on border control, mutual legal assistance, and conditions for denying refugee status,[866] but which should not, as noted below, be interpreted or applied in a manner inconsistent with states’ human rights obligations.

376. In this context, the Commission considered it instructive to include a separate section in this report addressing several fundamental human rights as they pertain to non-nationals in the context of anti-terrorist strategies,[867] in particular the right to personal liberty and security, the right to humane treatment, the right to due process and to a fair trial, and the obligation to respect and ensure, non-discrimination and the right to judicial protection. This analysis should be considered to supplement the generally-applicable protections canvassed in the previous chapters of this report.

377. At the outset, the Commission wishes to emphasize the fact that OAS member states have undertaken through Article 15 of the Inter-American Convention Against Terrorism the obligation to ensure that the measures carried out by the states parties under that Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms, and that nothing in the Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, including international refugee law.[868] This provision is consistent with the Commission’s previous observation that, when interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other international treaties. These include instruments of particular pertinence to non-nationals, including the Vienna Convention on Consular Relations,[869] the UN Convention relating to the Status of Refugees[870] and its Additional Protocol,[871] and the International Convention on the Elimination of all Forms of Racial Discrimination.[872] Many of the norms and principles under these treaties also reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system.

1. Right to Personal Liberty and Security

378. As noted in Part III(B) above, this Commission, like other international human rights bodies, has recognized that the deprivation of an individual’s liberty may be justified in connection with the administration of state authority beyond the investigation and punishment of crimes where measures of this nature are strictly necessary. Such circumstances have been held to include, for example, detention in the context of controlling the entry and residence of non-nationals in a state’s territory and confinement for reasons relating to physical or mental health.[873] While deprivations of liberty may be permissible in situations of this nature, the Commission has emphasized that any such detention must in all circumstances comply with the requirements of preexisting domestic and international law. As described above, these include the requirement that the detention be based on the grounds and procedures clearly set forth in the constitution or other law and that it be demonstrably necessary, fair and non-arbitrary. Prolonged incommunicado detention is prohibited; rather, detention for any extended period must be subject to supervisory judicial control without delay and, in instances when the state has justified continuing detention, at reasonable intervals.[874]

379. Additionally, the Commission has stated that immigration legislation must recognize the right to liberty of non-nationals, subject, however, to the qualifications discussed below concerning situations of international armed conflict. The grounds and procedures by which non-nationals may be deprived of their liberty should define with sufficient detail the basis for such action, and the State should always bear the burden of justifying a detention. Moreover, authorities should have a very narrow and limited margin of discretion, and guarantees for the revision of the detention should be available at a minimum in reasonable intervals.[875]

380. In the case of asylum seekers in particular, the Commission notes that detention or other restrictions on the movement of asylum seekers are permitted only as exceptions under applicable refugee and human rights law, and then only pursuant to law and subject to due process protections.[876] Measures aimed at the automatic detention of asylum seekers are therefore impermissible under international refugee protections. They may also be considered arbitrary and, depending upon the characteristics of persons affected by any such restrictions, potentially discriminatory under international human rights law.

381. Where the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals outside of situations of armed conflict is concerned, international jurisprudence, including that of the inter-American human rights system, has recognized the importance of compliance with international obligations aimed at protecting the particular interests of foreign nationals. These obligations include the requirements of Article 36 of the Vienna Convention on Consular Relations, which provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.[877]

382. These provisions have been described as establishing an interrelated regime designed to facilitate the implementation of the system of consular protection of foreign nationals in states party to the treaty.[878] Under this regime, a state party is obliged to inform foreign nationals who are detained in any manner by that state, whether criminal, administrative or otherwise, of their right to have the consulate of their state notified of the detainees’ circumstances and the detainee’s right to communicate with his or her consulate. In the realm of international human rights law, the right to consular notification has been recognized as significant to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which the legal assistance is provided and observing the conditions under which the accused is being held while in prison.[879] Accordingly, the Commission considers compliance with the consular notification requirements under the Vienna Convention on Consular Relations to constitute a fundamental aspect of guaranteeing to non-nationals the right to personal liberty and security and, as discussed below, the right to due process and to a fair trial.

383. In the particular situation of international armed conflicts, however, it must be recognized that the regime of international humanitarian law governing such conflicts includes detailed provisions governing the detention of combatants, as discussed in Parts II(C) and III(B) above. These include, for example, mechanisms by which detailed information concerning prisoners of war is to be gathered and provided to the concerned parties to the conflict and to next of kin.[880] In the Commission’s view, therefore, this specialized regime should be referred to as the applicable lex specialis in interpreting and applying the right to personal liberty and security of detained combatants in situations of international armed conflict.


2. Right to Humane Treatment

384. The impact of anti-terrorist initiatives upon respect for the right to humane treatment also has particular implications for the situation of non-nationals. This is especially pertinent in securing the rights of persons seeking asylum, whose very status under international instruments is derived from the need for protection from persecution. The inter-American human rights instruments provide certain guarantees in this regard for asylum seekers:

American Declaration

Article XXVII. Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.

American Convention

Article 22.7. Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes. (8) In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.

385. These guarantees reflect those prescribed under the Convention relating to the Status of Refugees,[881] which has been ratified by most member states of the OAS,[882] and which has been supplemented by the 1967 Protocol relating to the Status of Refugees.[883] These treaties have been considered by the Commission in interpreting and applying corresponding provisions of inter-American human rights instruments.[884] The 1951 Refugee Convention and the 1967 Protocol provide for a definition of who is and is not a refugee, or has ceased to be a refugee, the legal status of a refugee and his or her rights and duties in the country of refuge, and matters relative to the implementation of the respective instruments.[885] Under the regime of the 1951 Convention modified by the 1967 Protocol, 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;
*

or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.[886]

386. As a general matter, Article 3 specifies that the provisions of this regime must be applied without discrimination as to "race, religion or country of origin." Further, judicial protection is to be available in principle through the "free access to the courts of law on the territory of all Contracting States" set forth in Article 16(1) of the 1951 Convention.[887]

387. The Refugee Convention defines three basic groups that, while otherwise meeting the foregoing criteria, are excluded from refugee status: persons already subject to UN protection or assistance; persons not considered in need of international protection due to having been accorded treatment equivalent to that of nationals by the country of residence; and persons deemed undeserving of international protection. The latter group includes persons with respect to whom there are "serious reasons for considering" that they have committed "a crime against peace, a war crime, or a crime against humanity," a "serious non-political crime outside the country of refuge prior to admission," or "acts contrary to the purposes and principles of the United Nations." [888]

388. With respect to persons accorded refugee status, the corresponding protections must be maintained unless or until they come within the terms of one of the "cessation clauses." The paramount obligation of States Parties in respect of those qualifying for refugee status is that of non-return (non-refoulement) set forth in Article 33(1) of the 1951 Convention:

No Contracting State shall expel or return ("refouler") 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.[889]

389. Article 33(2) of the 1951 Convention, however, specifies that this benefit may not "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."

390. In light of the above provisions, the Commission recognizes that persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, a serious non-political crime outside the country of refuge prior to admission, or acts contrary to the purposes and principles of the United Nations [890] may be excluded from refugee status and that terrorism-related offenses could overlap with the above mentioned crimes.[891] Further, a person may not benefit from the non-refoulement prohibition of the Refugee Convention of 1951 if there are reasonable grounds for regarding the said person as a danger to the security of the country wherein he or she may be, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."[892] This could eventually include suspected terrorists or persons suspected of having committed terrorism-related crimes.

391. Given the potentially serious consequences of exclusion from refugee status, any determination that an individual falls into one of these categories must be made by fair and proper procedures, as discussed in further detail in Part III(D) and in Part III(H)(3) below concerning the right to due process and to a fair trial.

392. Moreover, even where a person may not qualify for refugee status or may be considered a danger to the security of the country wherein he or she may be situated, that person may not be removed to another country if in that state his or her life or personal freedom is in danger of being violated because of his or her race, nationality, religion, social status, or political opinions or where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.[893]

393. Specifically, in addition to and notwithstanding the scope and application of Article 33 of the 1951 Refugee Convention, Article 3 of the UN Torture Convention[894] provides:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

394. The obligation of non-return under this provision as well as that under Article 22(8) of the American Convention[895] is absolute and does not depend upon a claimant’s status as a refugee. This obligation also necessarily requires that persons who may face a risk of torture cannot be rejected at the border or expelled without an adequate, individualized examination of their circumstances even if they do not qualify as refugees.[896] The Commission has specifically stated in this regard that

the nature of the rights potentially at issue – for example, to life and to be free from torture – requires the strictest adherence to all applicable safeguards. Those safeguards include the right to have one’s eligibility to enter the process decided by a competent, independent and impartial decision-maker, through a process which is fair and transparent. The status of refugee is one which derives from the circumstances of the person; it is recognized by the State rather than conferred by it. The purpose of the applicable procedures is to ensure that it is recognized in every case where that is justified.[897]

395. The grave implications of failing to properly afford refugee claimants the protection discussed above cannot be overstated. In the most extreme case, a state that expels, returns or extradites a person to another State where there are substantial grounds for believing that this person would be in danger of being subjected to torture, will be considered responsible for violating this person's right to personal security or humane treatment.[898] As the Commission has observed:

For persons who have been subject to certain forms of persecution, such as torture, return to their home country would place them at a risk which is impermissible under international law. As noted above, the prohibition of torture as a norm of jus cogens--as codified in the American Declaration generally, and Article 3 of the UN Convention against Torture in the context of expulsion--applies beyond the terms of the 1951 Convention. The fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue.[899]

396. In addition to reinforcing the proper determination and protection of the status of asylum seekers and refugees, the right to humane treatment has implications for the conditions of non-nationals under any form of detention by a state. In this respect, the Commission has considered that guaranteeing adequate detention conditions is fundamental for the protection of the right to human treatment of non-nationals, including those who may not comply with immigration law. The Commission’s Special Rapporteur on Migrant Workers and the Members of their Families has stated that “undocumented immigrants do nothing more than transgress administrative regulations. They are not criminals nor are they suspected of any crime. [Therefore t]hey should be held in detention centers and not in regular prisons.”[900]

397. In the case of administrative detention, the Special Rapporteurship has indicated that there are various specific norms setting minimum standards for the treatment of persons deprived of their liberty,[901] including, as discussed in Part III(C) above,[902] the United Nations Standard Minimum Rules for the Treatment of Prisoners[903] and the United Nations Basic Principles for the Treatment of Prisoners,[904] as subsequently reinforced in the 1988 UN General Assembly’s approval of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.[905] Certain basic standards of detention conditions are particularly pertinent with regard to non-nationals. Migrants and their families should be kept together in relatively open facilities and not in cells. They should have access to libraries, recreation and health care. They should have the right to go outside at least one hour per day. Immigration detention centers should also make available legal manuals in various languages with information concerning the legal situation facing the detainees and a list of names and telephone numbers of legal counsel and organizations that they can contact for assistance, if they so desire. They should also be allotted clothing, toiletries and bedding. Non-citizens under administrative detention should have access to health care services and be given the opportunity to exercise or partake in recreational activities. The Special Rapporteurship has also emphasized that non-citizens should be able to communicate with their families and/or legal counselors both through visits, telephone calls and correspondence.[906]

3. Rights to Due Process of Law and to a Fair Trial

398. Articles 8 and 25 of the American Convention, and Articles XVIII, XXIV and XXVI of the American Declaration, are those provisions traditionally cited in relation to the developing doctrine concerning judicial guarantees and protection. These articles cover any situation in which it becomes necessary to determine the content and scope of the rights of a person under the jurisdiction of a state party, be it in a criminal, administrative, tax, labor, family, contractual or any other kind of matter.[907] These rules establish a baseline of due process to which all non-citizens, regardless of their legal status, have a right.[908] Further, the analysis of the right to due process and to a fair trial in Part III(D) above in proceedings of a criminal or other nature should be considered fully applicable to persons who find themselves in the territory of a state of which they are not nationals, in peacetime, states of emergency or armed conflicts.

399. Also as indicated in Part III(D) above, there may be occasions in which, owing to the particular circumstances of a case, guarantees additional to those explicitly prescribed in the pertinent human rights instruments are necessary to ensure a fair hearing. This stipulation is drawn in part from the very nature and functions of procedural protections, which must in all instances be governed by the principle of fairness and which in their essence must be designed to protect, to ensure, or to assert the entitlement to a right or the exercise thereof.[909] This includes recognizing and correcting any real disadvantages that persons concerned in the proceedings might have and thereby observing the principle of equality before the law and the corollary principle prohibiting discrimination of any kind.[910]

400. The potential need for additional procedural protections is starkly illustrated in proceedings involving non-nationals. For example, in the criminal sphere, special attention should be given to the vulnerability of a person facing criminal proceedings in a foreign country. First, it is essential that a person understands the charges against him or her and the full range of procedural rights available to him or her. To this end, translation and explanation of all legal concepts in the language of the defendant is essential and should be financed by the state if necessary. Further, in the context of capital proceedings against foreign nationals, the Inter-American Court of Human Rights has found compliance with the consular notification requirements under Article 36 of the Vienna Convention on Consular Relations to constitute additional guarantees necessitated by the rules of due process of law.[911] The protections prescribed under this provision are broadly considered to be pertinent to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which legal assistance is provided and observing the conditions under which the accused is being held while in prison.[912] Moreover, the Special Rapporteur on Migrant Workers has suggested that due process rights of this nature should apply to all immigration procedures. [913]

401. Further in this connection, as indicated in Part III(D) above, the due process protections under the American Convention and the American Declaration apply not only to criminal proceedings, but also to proceedings for the determination of rights or obligations of a civil, fiscal, labor or any other nature. This includes non-criminal proceedings against non-nationals. The full complement of due process protections applicable in a criminal proceeding may not necessarily apply in all other processes, but rather will depend upon the potential outcome and effects of the proceedings. The principle of due process, with this degree of flexibility, applies not only to court decisions, but also to decisions made by administrative bodies.[914]

402. As suggested by the foregoing, particular due process protections may be especially pertinent in certain processes involving non-nationals. Concerning proceedings for the expulsion or deportation of non-nationals lawfully within a state, for example, the Special Rapporteurship on Migrant Workers has stated that such measures may only be taken pursuant to a decision made in accordance with law.[915] Thus, the powers for deportation must be conferred by legislation, and all decisions must be made in accordance with the legislation in place so as not to be deemed arbitrary. Moreover, as the meaning of “law” in Article 22 of the American Convention is not limited to acts of the legislative branch in a formal sense, any legislation must be enacted in full accordance with the constitution and the rule of law, including conformity with all international treaty obligations.

403. In addition, the Commission has found in the context of removal proceedings against aliens that the persons concerned should be provided with a hearing and given an adequate opportunity to exercise their right of defense. While this may not require the presence of all the guarantees required for a fair trial in the criminal sphere, a minimum threshold of due process guarantees should be provided. This has been considered by the Commission to include the right to be assisted by a lawyer if they wish or by a representative in whom they have confidence, sufficient time to ascertain the charge against them, a reasonable time in which to prepare and formalize a response, and to seek and adduce responding evidence.[916] Hearings must be conducted in public to the extent required by due guarantees and fairness, which necessarily include the need to maintain public confidence and to avoid the possibility of injustice in such processes.[917]

404. Further, international instruments clearly prohibit the collective expulsion of aliens.[918] An expulsion becomes collective when the decision to expel is not based on individual cases but on group considerations, even if the group in question is not large. [919]

405. Also pertinent to the due process guarantees of non-nationals are proceedings for the determination of refugee or asylum status. In this connection, the Commission has interpreted the right to seek asylum provided for under Article XXVII of the American Declaration[920] and Article 22(7) of the American Convention[921] in light of the procedural protections underlying the 1951 UN Convention relating to the Status of Refugees[922] and its Additional Protocol.[923] In particular, the Commission has through these interpretive interrelationships required states to afford asylum-seekers a fair hearing to determine whether they satisfy the Convention refugee criteria, particularly where the non-refoulement provisions of the Refugee Convention, the American Convention, or the Inter-American Torture Convention may be implicated.[924]

406. Similar prerequisites have been held to apply to proceedings pertaining to the administrative detention of aliens, where processes through which an individual may be deprived of his or her liberty for security or other reasons must comply with minimal rules of fairness. These rules require, inter alia, that the decision-maker meets prevailing standards of independence and impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative. Such requirements will not be considered fulfilled where, for example, authorities fail to define with sufficient particularity or otherwise properly justify the grounds upon which an individual has been deprived of his or her liberty or place the onus on the detainee to justify his or her release.[925]

407. With regard to anti-terrorist initiatives in particular, it is apparent from the past practice of states, as well as from current efforts on the part of the Organization of American States and other intergovernmental organizations to address the problem of terrorism, that reactions to terrorist threats will include more rigorous and extensive implementation of methods to screen and remove aliens from the territory of states, in many cases through extradition or the denial of asylum status. [926]

408. Procedures of this nature may well be necessary and justified in protecting the populations of states from the dangers of terrorist violence, as reflected, for example, in certain provisions of international instruments governing refugees.[927] It is also beyond doubt, however, that these processes have significant implications for the lives and security of the persons concerned. This consideration, together with the legal character of such proceedings and their context within a state’s particular legal system, are factors that must be taken into account in defining the requirements of a fair trial and due process of law in processes of this nature.

409. As discussed previously, proceedings involving the detention, status or removal of aliens from a state’s territory by exclusion, expulsion or extradition have been found in this and other human rights systems to require individualized and careful assessment and to be subject to the same basic and non-derogable procedural protections applicable in proceedings of a criminal nature. And as indicated above concerning the right to humane treatment in the context of non-nationals, removal proceedings must properly take into account the principle of non-refoulement as reflected in such provisions as Article 33 the UN Convention on the Status of Refugees,[928] Article 3(1) of the UN Convention on Torture,[929] Article 13 of the Inter-American Convention to Prevent and Punish Torture,[930] and Article 22(8) of the American Convention on Human Rights.[931]

4. Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

410. As emphasized in Part III(F) above, among the most fundamental and non-derogable protections under international human rights law and international humanitarian law is the requirement that states fulfill their obligations without discrimination of any kind, including discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic situation, birth, or any other social condition. This obligation applies not only to a state’s commitment to respect and ensure respect for fundamental rights in the context of terrorist threats, but also limits the measures that states may take in derogating from rights that may properly be suspended in times of emergency by prohibiting any such measures that involve discrimination on such grounds as race, color, sex, language, religion, or social origin.[932]

411. Migrants, asylum seekers and other non-nationals are especially vulnerable to discrimination in emergency situations resulting from terrorist violence. This risk is particularly prevalent where terrorist violence is considered to emanate from foreign sources and where, as a consequence, asylum and other measures of protection for non-nationals may be perceived as providing refuge for terrorists. As the United Nations High Commissioner for Refugees has noted,

[e]quating asylum with a safe haven for terrorists is not only legally wrong and thus far unsupported by facts, but it serves to vilify refugees in the public mind and promotes the singling out of persons of particular races or religions for discrimination and hate-based harassment.[933]

412. States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination, and that their officials and agents conduct themselves fully in conformity with these rules and principles. This requires in particular that states refrain from applying their immigration control operations in a discriminatory manner. Accordingly, to the extent that such operations may incorporate criteria, such as national or social origin, that may potentially constitute the basis for discrimination, the content and execution of such operations must be based upon objective and reasonable justifications that further a legitimate purpose, regard being had to the principles which normally prevail in a democratic society, and they must be reasonable and proportionate to the end sought.[934]

413. As in the case of all persons protected under the inter-American human rights instruments, member states are obliged to conduct themselves so as to ensure the free and full exercise of human rights to migrant workers, asylum-seekers, refugees and other non-nationals. This obligation includes the duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights and freedoms. Member states must therefore afford non-nationals a remedy for any violations of the several due process, non-discrimination and other rights and freedoms mentioned above. Where non-nationals are the subject of judicial, administrative or other proceedings, judicial review must always be provide for, either through appeal in administrative law or by recourse to amparo or habeas corpus. Judges should maintain at least baseline oversight of the legality and reasonableness of administrative law decisions in order to comply with the guarantees provided for in Articles XVIII and XXIV of the American Declaration and Articles 1(1) and 25 of the American Convention.[935]

Notes_______________________________________

[829] For general discussions of the nature and development of modern terrorism by sub-state groups, see Russell, supra note 16; Reisman 1999, supra note 37, at 50.

[830] American Declaration, supra note 63, Article XXI (“Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature”); American Convention on Human Rights, supra note 61, Article 15 (“The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others”).

[831] American Declaration, supra note 63, Article XXII (“Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature”); American Convention on Human Rights, supra note 61, Article 16 (”1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. 2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others. 3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police”).

[832] American Declaration, supra note 63, Article III (“Every person has the right freely to profess a religious faith, and to manifest and practice it both in public and in private”); American Convention on Human Rights, supra note 61, Article 12 (”1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private. 2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. 3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions”).

[833] As noted in the section of the report addressing fair trial and due process guarantees, for example, the ability of states to prosecute and punish members of a group for alleged terrorist activity is limited by the general principle of criminal law by which individuals may only be tried on the basis of individual penal responsibility and may not be the subject of collective punishment. Accordingly, a person may not be punished based solely upon his or her membership in a group alleged to be engaged in terrorist acts, absent evidence establishing his or her individual responsibility for the crime or crimes in which a particular group is implicated. See supra notes 563-565 and accompanying text (individual penal responsibility), citing, inter alia, American Convention, Article 5(3) “Punishment shall not be extended to any person other than the criminal.”; UN Secretary General Report (1993), supra note 189, para. 51.

[834] See, e.g., Eur. Comm. H.R., Rassemblement Jurassien + Unité v. Switzerland, Case Nº 8191, October 10, 1979, D.R. 17, p. 93.

[835] See, e.g., Eur. Court H.R., Plattform “Ärzte für das Leben” v. Austria, June 21, 1988, Series A Nº 139, p. 12, para. 32.

[836] I/A Court H.R., Advisory Opinion OC-6/86, The Word “Laws” in Article 30 of the American Convention in Human Rights, May 9, 1986, Series A Nº 6, paras. 35, 37.

[837] Advisory Opinion OC-6/86, supra note 836, paras. 22, 27.

[838] American Declaration, supra note 63, Article XXVIII; American Convention on Human Rights, supra note 61, Article 30. See also I/A Court H.R., Baena Ricardo et al. Case (270 Workers v. Panama), February 2, 2001, Series C, Nº 61, p. 137, paras. 169-173.

[839] Advisory Opinion OC-8/87, supra note 147, para. 26.

[840] Olmedo Bustos et al. Case, supra note 649, para. 79.

[841] American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Articles 1(1), 24, 27(1).

[842] See similarly Third Geneva Convention, supra note 67, Articles 34-37 (governing the religious activities of interned prisoners of war); Fourth Geneva Convention, supra note 36, Articles 27, 38, 93 (governing respect for the religious convictions and practices of protected persons, including internees, in the territories of parties to a conflict and in occupied territories).

[843] See, e.g., IACHR, Report on Argentina (1980), supra note 27, at 251-254 (criticizing legislative, law enforcement and other measures taken by the Government of Argentina against the activities of members of the Jehovah’s Witnesses religious sect).

[844] For a similar phenomenon arising from failures to investigate in the context of the right to freedom of expression, see Hector Felix Miranda Case, supra note 704.

[845] American Declaration, supra note 63, Article XXIII (“Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home”; Article V. “Every person has the right to protection of the law against abusive attacks upon his honor, his reputation, and his private and family life”, Article IX “Every person has the right to the inviolability of his home,” Article X (“Every person has the right to the inviolability and transmission of his correspondence”).

[846] American Convention on Human Rights, supra note 61, Article 21 (“1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law”); Article 11 (“1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks”).

[847] Universal Declaration of Human Rights, supra note 65, Article 17 (“1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.”); Article 12 (“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”); International Covenant on Civil and Political Rights, supra note 66, Article 17 (”1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”); Protocol Nº 1 to the European Convention on Human Rights, Article 1 (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”).

[848] See, e.g., UNSC Resolution 1373, supra note 40, Preamble (recognizing the “need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism").

[849] Awas Tingni Case, supra note 800, at 675, para. 144, citing Ivcher Bronstein Case, supra note 702, para. 122. See similarly Handyside Case, supra note 649, at 29-30; Marckx Case, supra note 129, at 27-28.

[850] Awas Tingni Case, supra note 800, at 675, paras. 111-115.

[851] American Declaration, supra note 63, Article XXVIII. See also Advisory Opinion OC-5/85, supra note 152, para. 44.

[852] Awas Tingni Case, supra note 800, at 675, para. 143.

[853] See, e.g., Eur. Court H.R., Case of Raimondo v. Italy, February 22, 1994, Series A
Nº 281-A, at 17, para. 30.

[854] See, e.g., Additional Protocol I, supra note 68, Article 54; Additional Protocol II, supra note 36, Article 14.

[855] See, e.g., Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954 249 U.N.T.S. 240; Additional Protocol I, supra note 68, Article 53.

[856] For examples of measures that may arise out of anti-terrorist investigations, see Inter-American Convention Against Terrorism, supra note 8.

[857] See supra Part III(E) (freedom of expression and privacy of personal information). See also American Declaration, supra note 63, Article V (“Every person has the right to protection of the law against abusive attacks upon his honor, his reputation, and his private and family life”); Article IX (“Every person has the right to the inviolability of his home”); Article X (“Every person has the right to the inviolability and transmission of his correspondence”); American Convention on Human Rights, supra note 61, Article 11 (”1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks”).

[858] See, e.g., Eur. Court H.R., Case of Gaskin v. United Kingdom, July 7, 1989, Ser. A Nº 162, p. 20, para. 49.

[859] See American Declaration, supra note 63, Article V; American Convention on Human Rights, supra note 61, Article 11. See also Eur. Court H.R., Case of Klass and Others v. Germany, September 6, 1978, Ser. A Nº 28, paras. 50-60; Eur. Court H.R., Case of Malone v. United Kingdom, August 2, 1984, Ser. A Nº 82, pp. 31-33, paras. 66-68. It should be recalled, however, that in a legitimate state of emergency the rights to property and privacy may be the subject of derogations as discussed in Part II(A).

[860] American Declaration, supra note 63, Article XX (“Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free”).

[861] American Convention on Human Rights, supra note 61, Article 23 (“1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings”).

[862] See, e.g., IACHR, Report on El Salvador (1978), supra note 27, Chapter IX; IACHR, Report on Paraguay (1987), supra note 139, Chapter VII.

[863] American Convention on Human Rights, supra note 61, Article 27(2).

[864] Advisory Opinion OC-8/87, supra note 147, para. 35. See similarly Advisory Opinion OC-6/86, supra note 836, para. 24; Advisory Opinion OC-9/87, supra note 342, para. 37; Advisory Opinion OC-8/87, supra note 147, paras. 20, 40.

[865] See supra, Part III(E), para. 325.

[866] See, e.g., Inter-American Convention Against Terrorism, supra note 8.

[867] For these reasons, as noted in Part I(C) above, this Chapter has been included as a variation to the rights-based approach otherwise followed in this report. See supra, Part I(C),
para. 28.

[868] See also supra, Part II(B), paras. 45. 46.

[869] Vienna Convention on Consular Relations, supra note 124.

[870] UN Convention on the Status of Refugees, supra note 120.

[871] UN Protocol on the Status of Refugees, supra note 121.

[872] International Convention on the Elimination of all Forms of Racial Discrimination, supra note 123.

[873] Ferrer-Mazorra et al. Case, supra note 114, para. 210.

[874] Ferrer-Mazorra et al. Case, supra note 114, para. 212. See similarly UNHRC, Communication Nº 560/1993, CCPR/C/59/D/560/1993, 30 April 1997, para. 9.4.

[875] Ferrer-Mazorra et al. Case, supra note 114, paras. 212–213, 219-221, 226, 228, 230.

[876] UN Convention on the Status of Refugees, supra note 120, Article 26 (“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances”). See also Ferrer-Mazorra et al. Case, supra note 114,
para. 212.

[877] Vienna Convention on Consular Relations, supra note 124, Article 36.

[878] LaGrand Case, supra note 348, para. 74.

[879] See Advisory Opinion OC-16/99, supra note 129, paras. 56, 57. Other international authorities have similarly recognized the importance of facilitating consular assistance for the protection of foreign nationals under any form of arrest, detention or imprisonment. See UN Body of Principles on Detention or Imprisonment, supra note 335, Principle 16(2) (providing that “[i]f a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization”); ICTY Rules of Detention, supra note 349, Rule 65; Declaration on the human rights of individuals who are not nationals of the country in which they live, supra note 349, Article 10.

[880] See, e.g., Third Geneva Convention, supra note 67, Articles 122, 123.

[881] UN Convention on the Status of Refugees, supra note 120.

[882] For OAS member states that are parties to the 1951 Refugee Convention and its 1967 Protocol, see Annex II.

[883] UN Protocol on the Status of Refugees, supra note 121.

[884] Haitian Interdiction Case, supra note 546.

[885] See IACHR, Report on Canada (2000), supra note 338, paras. 21 and following, referring to Office of the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (reedited, Geneva, 1992), at 4-5.

[886] IACHR, Report on Canada (2000), supra note 338, para 22.

[887] IACHR, Report on Canada (2000), supra note 338, para. 24.

[888] IACHR, Report on Canada (2000), supra note 338, para. 23.

[889] IACHR, Report on Canada (2000), supra note 338, para. 24. See also Haitian Interdiction Case, supra note 546, paras. 154-155.

[890] IACHR, Report on Canada (2000), supra note 338, para. 23.

[891] As noted previously, certain international anti-terrorism instruments explicitly stipulate that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition. See supra, para. 115.

[892] UN Convention on the Status of Refugees, supra note 120, Article 33(2).

[893] American Convention on Human Rights, supra note 61, Article 22(8); UN Torture Convention, supra note 376, Article 3.

[894] UN Torture Convention, supra note 376. See also Inter-American Torture Convention, supra note 105, Article 13 (“Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State”).

[895] American Convention on Human Rights, supra note 61, Article 22(8) (“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinion”).

[896] IACHR, Report on Canada (2000), supra note 338, para. 25.

[897] IACHR, Report on Canada (2000), supra note 338, para. 70.

[898] In the Haitian Interdiction Case, the Commission found that the United States Government's act of interdicting Haitians on the high seas, placing them in vessels under their jurisdiction, returning them to Haiti, and leaving them exposed to acts of brutality by the Haitian military and its supporters constituted a breach of the right to security of some of the Haitian refugees. Haitian Interdiction Case, supra note 546, para. 171.

[899] IACHR, Report on Canada (2000), supra note 338, para. 154. In reaching these conclusions, the Inter-American Commission shared the view of the European Court of Human Rights in the case Chahal v. United Kingdom. In that case, the European Court specified that while States necessarily face "immense difficulties" in protecting the public from terrorism, even under those circumstances the prohibition against returning a person to torture remains absolute, "irrespective of the victim’s conduct." The Court also considered this prohibition to be equally applicable in expulsion cases. Eur. Court H.R, Chahal v. United Kingdom, 15 November 1996, 1996-V Nº 22 (1996), at 1831.

[900] Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere, Annual Report of the IACHR 2000, para. 110 [hereinafter Report of the Special Rapporteurhip on Migrant Workers (2000)].

[901] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 117.

[902] See Part III(C) (Right to Humane Treatment), paras. 167-168.

[903] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335.

[904] UN Basic Principles for the Treatment of Prisoners, United Nations, Economic and Social Council Resolution 663 C (XXIV) 1957; General Assembly Resolution 45/111, 1990.

[905] United Nations, General Assembly Res. 43/173, annex, UN GAOR Supp. (Nº 49) at 298, UN Doc. A/43/49 (1988).

[906] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 110.

[907] As indicated in Part III(D) above, compliance with the requirements of the right to due process and to a fair trial is not limited to criminal proceedings, but rather also applies, mutatis mutandi, to non-criminal proceedings for the determination of a person’s rights and obligations of a civil, labor, fiscal or any other nature. See Constitutional Court Case, supra note 545, paras. 69, 70.

[908] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 90.

[909] Advisory Opinion OC-16/99, supra note 129, paras. 117, 118, citing Advisory Opinion OC-8/87, supra note 147, para. 25.

[910] Advisory Opinion OC-16/99, supra note 129, paras. 119.

[911] Advisory Opinion OC-16/99, supra note 129, para. 124. See also supra para 95, Part III(A) (Right to Life).

[912] See Advisory Opinion OC-16/99, supra note 129, paras. 86, 87, 120. See also UN Body of Principles on Detention or Imprisonment, supra note 335, Principle 16(2) (providing that “[i]f a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization”); ICTY Rules of Detention, supra note 349, Rule 65; Declaration on the human rights of individuals who are not nationals of the country in which they live, supra note 349, Article 10.

[913] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 99.

[914] SReport of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 95, citing European Commission on Human Rights, Hortolemei v. Austria, April 1998, p. 38.

[915] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 97, citing, inter alia, American Convention on Human Rights, supra note 61, Article 22(6).

[916] Loren Laroye Riebe Star and others Case, supra note 546, paras. 70, 71. See also American Convention on Human Rights, supra note 61, Article 22(6) (“An alien lawfully in the territory of a State Party to this Convention may be expelled from it only pursuant to a decision reached in accordance with law.”); International Covenant on Civil and Political Rights, supra note 66, Article 13 (“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”).

[917] See, e.g., American Convention on Human Rights, supra note 61, Article 8(1); American Declaration, supra note 63, Article XVIII. See also supra, Part III(D), para. 228-233.

[918] American Convention on Human Rights, supra note 61, Article 22(9).

[919] See Annual Report of the IACHR 1991 supra note 448, Ch. V, Situation of Haitians in the Dominican Republic.

[920] American Declaration, supra note 63, Article XXVII (“Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”).

[921] American Convention on Human Rights, supra note 61, Article 22(7) (“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”).

[922] UN Convention on the Status of Refugees, supra note 120.

[923] UN Protocol on the Status of Refugees, supra note 121.

[924] IACHR, Report on Canada (2000), supra note 338, para. 24; Haitian Interdiction Case, supra note 546, para. 155.

[925] Ferrer-Mazorra et al. Case, supra note 114, paras. 213-231.

[926] See, e.g., UNSC Resolution 1373, supra note 40; Inter-American Convention Against Terrorism, supra note 8.

[927] See, e.g., UN Convention on the Status of Refugees, supra note 120, Article 1F.

[928] UN Convention on the Status of Refugees, supra note 120, Article 33 (“1. No Contracting State shall expel or return ('refouler') 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. 2. 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 judgement of a particularly serious crime, constitutes a danger to the community of that country”).

[929] UN Torture Convention, supra note 376, Article 3(1) (“No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”).

[930] Inter-American Torture Convention, supra note 105, Article 13 (“Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State”).

[931] American Convention on Human Rights, supra note 61, Article 22(8) (“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions”).

[932] American Convention on Human Rights, supra note 61, Articles 1(1), 27.

[933] Office of the United Nations High Commissioner for Refugees, Addressing Security Concerns without Undermining Refugee Protection (November 2001), para. 28 (on file with Inter-American Commission on Human Rights).

[934] It is pertinent to note in this respect that the Commission has previously granted precautionary measures to protect persons from potentially discriminatory treatment by state authorities. In accordance with Article 25 of the Commission’s Rules of Procedure, precautionary measures may be adopted by the Commission in order to prevent “irreparable harm to persons.” On August 27, 1999, for example the Commission granted precautionary measures in favor of two minors in the Dominican Republic, Dilcia Yean and Violeta Bosica. According to the information before the Commission, they had been denied Dominican nationality, despite having been born in the territory of the Dominican Republic and despite the fact that the Constitution establishes the principle of ius soli. By denying them this right, they were exposed to the imminent threat of arbitrary expulsion from their country of birth. On this basis, the Commission requested that the State adopt the measures necessary to prevent their expulsion from the territory of the Dominican Republic, and to prevent Violeta Bosica from being deprived of her right to attend school and to receive the education provided to other children of Dominican nationality. See Annual Report of the IACHR 1999 OEA/Ser./V/II.106, 13 April 2000, Ch. III, para. 27.

[935] Report of the Special Rapporteurhip on Migrant Workers (2000), supra note 900, para. 99.

 



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