MAINSTREAMING REFUGEE RIGHTS

MAINSTREAMING REFUGEE RIGHTS

The 1951 Refugee Convention and

International Human Rights Law

TOM CLARK[1]

in cooperation with

FRANÇOIS CRÉPEAU[2]

Published in

(1999) 17 Netherlands Human Rights Quarterly 389-410

28 August 1999

CONTENTS

Introduction

1. The 1951 Refugee Convention as a Human Rights Treaty

(a) The 1951 Refugee Convention cannot stand alone

(b) The 1951 Refugee Convention has been complemented by human rights treaties

(d) The right to seek asylum and the 1951 Refugee Convention

2. The special measures in favour of "refugees"

(a) The Refugee Definition as a passport to asylum

(b) Non-refoulement, expulsion rights and human rights case law

(d) The limitation of rights according to the lawfulness of the presence or residence of the refugee

3. The rights granted to refugees by comparison with citizens or other foreigners

(a) Treaty human rights beyond the 1951 Refugee Convention

(b) Limits on 1966 ESCR Covenant economic, social and cultural rights

4. Towards a fuller implementation of the 1951 Refugee Convention in its human rights treaty context

(a) "Supervision" by UNHCR

(b) Role of a federal state

(d) Guidelines for examining States' treatment of refugees and asylum seekers

(e) Resolving the jurisdictional dilemma

(f) Possible new mechanisms: it is time for another Protocol

Conclusions

Appendix: Possible basis for a UN Treaty Body Reporting Mechanism

Introduction

For too long, the 1951 Geneva Convention relating to the Status of Refugees[3] has been treated as a piece of international legislation that could only be interpreted according to its own internal logic and objectives in isolation from international human rights law[4].

This paper will show how it is no longer possible to interpret or apply the 1951 Refugee Convention without drawing on the text and jurisprudence of other human rights treaties. Converesely, it is not possible to monitor the implementation of other human rights treaties, where refugees are concerned, without drawing on the text of the 1951 Refugee Convention and related interpretive EXCOM Conclusions agreed to by States and introduced below.

The 1969 Vienna Convention on the Law of Treaties makes clear that interpretation is to be based on the ordinary meaning of the text in the context of the whole treaty including its purpose and in the juridical context of subsequent agreements by States parties. Subsequent agreement includes texts of human rights treaties and related jurisprudence. Consequently, the International Court of Justice, which can interpret the 1951 Refugee Convention[5], and the Inter-American Court of Human Rights which can interpret human rights treaties in the Americas[6], have pointed out in case law[7] that a treaty is to be interpreted in its current juridical context. Other human rights treaties are part of that juridical context. In exploring the 1951 Refugee Convention, this paper will draw both on its text and own context and on the relevant provisions of subsequent human rights treaties and related international jurisprudence.

A relationship has been established between the non-refoulement clause of the 1951 Refugee Convention (article 33) and human rights treaty provisions protecting everyone from torture. The relationship with the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment[8] has been formally acknowledged in a Conclusion adopted by all member States of the UN High Commissioner for Refugees Program. Some human rights treaties have extended non-refoulement to everyone and not only those qualifying as "refugees". Human rights treaty bodies have applied rights to protection from torture and to protection of family life to protect non-citizens other than those formally recognized as refugees from expulsion.

The relationship between the right to seek and obtain asylum and the application of the 1951 Refugee Convention has been confirmed in two cases decided by the Inter-American Commission on Human Rights which applies Charter rights of the Organization of American States (OAS) from the 1948 American Declaration and applies the 1969 American Convention: Joseph v. Canada[9] and Haitian Interdiction v. US[10].

Taken as a whole, the provisions of the 1951 Refugee Convention cover the content of "asylum" as expressed recently in UN documents including an EXCOM Conclusion. The content of asylum includes rights relating to entry into a State, a limited right to remain there, protection from expulsion or refoulement and certain rights while remaining. The paper explores this relationship.

Both as a whole and as in its individual provisions, the 1951 Refugee Convention falls under current international human rights doctrine on non-discrimination because it is about differentiating among non-citizens. It grants some rights to refugees by comparison with citizens or other non-citizens and it grants some rights as a special measure for refugees. The whole instrument can be viewed as a special measure for persons who qualify under a definition of "refugee". Yet other human rights treaties intend many of the same rights to everyone on the territory without discrimination with respect to status. The paper explores these relationships.

A recent report by Dent[11] has compared the implementation of the provisions on social and economic rights of various human rights treaties in effect in Europe, including the 1951 Refugee Convention, in favour of refugees and asylum seekers.

This paper examines the implementation measures in the 1951 Refugee Convention and explores the implications for implementation of the relationships with other human rights treaties. Clearly, the protection of rights of asylum seekers and others in expulsion has been implemented by a number of UN and regional human rights treaty bodies. Non-discrimination relating to rights in other treaties can be the subject of complaints to a treaty body. The paper suggests a way of reinforcing the reporting mechanism of the 1966 International Covenant on Economic, Social and Cultural Rights and 1966 International Covenant on Civil and Political Rights[12] to take into account the special situation of refugees and their protection under the 1951 Refugee Convention.

The paper suggests that aspects of the 1951 Refugee Convention which relate to the right to seek and obtain asylum in the OAS and Organization of African Unity (OAU) human rights systems can be developed by each of the relevant treaty bodies in reports and in individual complaint cases.

The paper finds residual matters which require further initiatives to fully implement the 1951 Refugee Convention in its current context, notably guidance on the application of definition of "refugee". The paper considers ways of resolving these including a possible "Protocol".

1. The 1951 Refugee Convention as a Human Rights Treaty

(a) The 1951 Refugee Convention cannot stand alone

The 1969 Vienna Convention on the Law of Treaties is the standard for treaty interpretation. Article 31 requires using the ordinary meaning of the text in context of the whole treaty including its purpose. It also requires using the juridical context of subsequent agreements by States parties. This subsequent agreement includes texts of human rights treaties adopted and the jurisprudence relating to them insofar as these treaties provide for jursiprudence in their own texts. The 1951 Refugee Convention is an early human rights treaty. For such an early treaty, it is particularly important to take into account the changed juridical context. The Inter-American Court of Human Rights has confirmed this interpretive approach in its analysis and resulting advisory opinion of the contemporary 1948 American Declaration.

A dramatic illustration of the need to consider the current juridical context is the geographical limitation to European refugees from the Second World War of the 1951 Refugee Convention. This restriction on the basis of nation of origin would be in prima facie violation of the non-discrimination provisions of almost all other UN human rights instruments. Any current application of the 1951 Refugee Convention must be made alongside the 1967 New York Protocol on the Status of Refugees which opened refugee status to non-European refugees and removed the time limit of the Second World War.

It is also possible that reservations to the 1951 Refugee Convention have been overtaken by the subsequent ratification of human rights treaties. Thus, for example, the Canadian reservation[13] which does not recognize a refugee as lawfully staying on the State territory unless admitted for permanent residence. The reservation has the effect of discriminating against a recognized refugee with respect to important social and economic rights. Canada has already been involved in case law before the Inter-American Commission on Human Rights in which persons were underground[14]. Evidently, for the purpose of complaining to an international human rights body, one does not need to enjoy Canadian domestic landed immigrant status.

(b) The 1951 Refugee Convention has been complemented by human rights treaties

Although many of the civil, economic, social and cultural rights in the 1951 Refugee Convention have been superseded for States parties to subsequent treaties like the 1966 Covenants, an enduring role remains in combination with these other treaties. Most importantly, the 1951 Refugee Convention provides a legitimate purpose to be on State territory. As will be shown, the 1951 Refugee Convention allows presence to be lawful or not lawful if the purpose is to claim refugee status. Claiming refugee status is also related to claiming the right to seek asylum under some other instruments.

Once on State territory, a range of protections beyond the 1951 Refugee Convention supplement the 1951 Refugee Convention protections against expulsion and refoulement. When on State territory, while claiming refugee status or with recognized refugee status, "everyone" may claim other treaty human rights without discrimination. The 1951 Refugee Convention only anticipates many of these later treaty rights. It grants rights in two ways. It provides concrete affirmative measures like documentation to facilitate civil rights like freedom of movement. It provides social and economic rights like rights to work and to social assistance by comparison with the treatment of others, whether citizens or non-citizens.

Although the ordinary meaning of all human rights treaty texts proclaims rights for everyone without discrimination, States have not yet accepted the full implications of the promise. Treaty committees and commissions have been silent or hesitant to confirm social and economic rights. Principled application of the doctrine of non-discrimination will prove more and more important in the future.

Many provisions of the 1951 Refugee Convention may be considered to fall under the right to non-discrimination in other human rights instruments. The 1951 Refugee Convention as a whole differentiates "refugees" who match the definition, from among other non-citizens who are on State territory. It differentiates again within the application of the definition by clauses on "exclusion" and "cessation" of the special status created. As noted above, some provisions of the 1951 Refugee Convention aim at providing special rights or benefits to refugees while other provisions recognize rights to refugees by comparison with citizens or other non-citizens.

According to the general doctrine of non-discrimination which has emerged in the recent case law of the human rights treaty bodies, any differentiation which is legitimate must respect the following conditions: be in law, for a legitimate purpose, reasonable, as well as objective and proportionate[15]. Otherwise, the differentiation constitutes discrimination and is illegal. In particular, allegations of discrimination fall under 1966 CPR Covenant article 26[16], both for reporting and for complaints against States parties to Protocol I to the 1966 CPR Covenant. The general principle for all non-citizens under the 1966 CPR Covenant is clear in General Comment 15[27][17] of the Human Rights Committee. In general, citizens and non-citizens are to benefit from all the rights without discrimination. Unfortunately, there is as yet little case law. Subsequent sections will reflect on the requirement of non-discrimination for specific rights or benefits and on the implications for possible implementation of aspects of the 1951 Refugee Convention by application of non-discrimination doctrine.

(d) The right to seek asylum and the 1951 Refugee Convention

As noted above, the provisions of the 1951 Refugee Convention cover the content of "asylum". For example, a right to seek asylum was discussed in the Final Report of expert Mubanga-Chipoya in 1988, as consisting of several elements: to admit a person to the territory of a State, to allow the person to remain there, to refuse to expel or extradite and not to prosecute punish or otherwise restrict the perons' liberty[18]. Related elements are contained in the 1998 EXCOM Conclusion under the Institution of Asylum. The 1951 Refugee Convention contains these same elements.

Clearly, there is a relationship with an international right to seek asylum where it exists in the OAU[19] and OAS[20] human rights systems. In two individual case reports, the Inter-American Commission on Human Rights has begun to explore the relationship. In the Joseph case, a relationship is accepted between Mrs Joseph's hearings relating to refugee and other status and the international right to seek asylum. In this case and again in the Haitian Interdiction case, the Commission notes that the right to seek asylum must reflect both international and national law[21]. The 1951 Refugee Convention is determined to qualify as the international component.

In the Haitian Interdiction case, the Commission proceeds to rule on non-refoulement which relates to the rights to life and freedom of Haitian asylum seekers returned to Haiti and persecuted. The fact that there is a right to seek asylum raises the issue of non-discrimination again: one would expect that a State would have to provide procedures for implementing such an important right as the right of asylum, in a manner consistent with the way it provides procedures for comparable rights for its citizens.

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Through the lens of non-discrimination, the provisions of the 1951 Refugee Convention can be categorized into two broad groups. The first set can be viewed as special affirmative measures necessary to allow refugees to enjoy rights on an equal footing with others. Thus, for example, the provision on travel documents is a more specific form of the general right of everyone to freedom of movement found in the 1966 CPR Covenant. The second set are rights, for example education, that are granted by comparison with others remaining in the State. In this second case non-discrimination becomes a central principle of interpretation in ensuring that refugees benefit from rights provided for in other human rights instruments. The next sections explore these two sets of rights in more detail.

2. The special measures in favour of "refugees"

In the juridical context of the human rights treaties, the 1951 Refugee Convention as a whole can be viewed as an affirmative measure in favour of refugees. While some of its detailed provisions are not found in later human rights treaties, most of them however implement a more widely granted human right, in this case responding to particular needs of the refugee situation: for example, the refugee travel document implements the broader right of everyone to freedom of movement. Since the right provided for in the 1951 Refugee Convention provision constitutes here an aspect of a 1966 CPR Covenant right, the non-discrimination dimension can be raised in reports by States parties and can in theory be the object of complaints to a relevant treaty body. Some of the refugee's rights considered here have been modified considerably by the human rights treaties.

(a) The Refugee Definition as a passport to asylum

The application of the refugee definition is an act of differentiation which grants a limited right to remain. It results in the enjoyment of a number of important civil, political, economic and social rights. There are several levels of potential discrimination.

One level is in the application of the definition. Evidently, non-discrimination would preclude a biased application of the definition that would result in persons of one nationality failing to receive refugee status while refugees of another nationality fleeing comparable circumstances would be granted refugee status. Indeed, the Inter-American Commission on Human Rights ruled against the U.S. in such circumstances in the Haitian Interdiction case. Similarly, the application of the exclusion clauses — which allow some persons who would otherwise be refugees to be excluded on the grounds of acts of terrorism, war crimes or serious crimes — within the definition must also conform with non-discrimination doctrine. Various forms of discrimination are possible, ranging from discrimination on the basis of national origin to arbitrary application of the provision against an individual. In all these cases, the international doctrine for non-discrimination is helpful, as human rights treaty bodies can use it to interpret the provisions of the 1951 Refugee Convention and criticize their implementation by State parties to it.

Another level of potential discrimination consists of the level of due process available as compared with citizens, or indeed other non-citizens, when comparable rights are adjudicated. This can be a complex comparizon to make, but, for example, in a State where courts and independent tribunals are the norm for adjudicating rights, using administrative decision-making for refugee status determination could be discriminatory. A human rights treaty body may therefore examine how the adjudication of comparable rights is carried out for citizens, for example where welfare or work rights are concerned, which can be equated with the content of asylum. Due process aspects of refugee procedures are therefore amenable to human rights treaty bodies, as was illustrated by the use of a "site visit" by the Inter-American Commission on Human Rights[22].

(b) Non-refoulement, expulsion rights and human rights case law

The later human rights treaties have already made a significant impact on the 1951 Refugee Convention protections against expulsion and refoulement. A number of regional and U.N. treaty bodies have intervened to prevent expulsion of persons when torture or aspects of the right to life are at serious risk[23].

According to article 32 of the 1951 Refugee Convention, refugees cannot be subject to expulsion, except on grounds of national security or public order: they must be allowed to appeal and must have a reasonable time within which to seek admission into another country, i.e. there must be due process of law. On the one hand, this provision can be viewed as another special measure in favour of the refugee, adding detail and content to the general right to an expulsion hearing for any non-citizen as set out in various human rights treaties such as in article 13 of the 1966 CPR Covenant. On the other hand, the case law of several human rights treaty bodies has shown that the specific exceptions of the 1951 Refugee Convention — national security or public order — do not limit rights, such as protection from torture, under the human rights treaties.

Decisions of the European Court of Human Rights show that the prohibition of expulsion extends to persons other than refugees in two situations: when there is a risk of torture or cruel treatment and when the right to protection of family life is at issue. In the Soering case, the court found that the extradition would amount to a inhuman or degrading treatment, considering the form of death penalty applied in the requesting jurisdiction[24]. In a series of cases such as Moustaquim v. Belgium, the Court found that, despite serious crimes, expulsion would be prohibited if it would result in a disproportionate violation of the right to family life[25]. Decisions of the UN Human Rights Committee show that the protection from expulsion on account of a treatyright extends to persons other than refugees, such as in the case of the right to life (Cox v. Canada and Kindler v. Canada[26]), of the prohibition of torture or cruel, inhuman or degrading treatment (Ng v. Canada[27]) and of the rights to family life and freedom of movement (Stewart v. Canada[28]). Since important treaty rights were at issue, the question of an appropriate level of due process arises, but has yet to be fully addressed by the treaty bodies.

The granting of a right of appeal against expulsion to a refugee and the granting of freedom of movement must also conform with the general principle for the treatment of non-citizens — the benefit of comparable due process with that owed to citizens for comparable rights. Again, the fact that a special right applies to refugees does not mean that it does not apply to other non-citizens. For example, if a refugee can choose the country for expulsion, it would appear necessary to allow other non-citizens, in comparable circumstances, the same right.

States have acknowledged the impact of human rights treaties on the article 33 ("non-refoulement") of the 1951 Refugee Convention, forbidding the return of a refugee to a country where her life or freedom would be threatened, unless the refugee is a security risk or has been convicted of a serious crime and constitutes a public danger. Later treaties, such as the 1969 American Convention (art. 22.8), extend this provision to all foreigners. EXCOM conclusions in 1997 and 1998 noted that, universally, the protection applies whether a person has been recognized as a refugee or not and that the protection includes protection from risk of torture.

Article 3 of 1984 Convention against Torture extends the non-refoulement principle to encompass the absolute prohibition to return any person to a country where "there are substantial grounds for believing that he would be in danger of being subjected to torture". This applies whether or not the person "is a security risk or has been convicted of a serious crime and constitutes a public danger", which is the limitation on the protection of a refugee from expulsion under the 1951 Refugee Convention. The U.N. Human Rights Committee has adopted, in General Comment 20, the clarification that article 7 (prohibition of torture) of the 1966 CPR Covenant must be interpreted to prohibit expulsion when there is a consequential real risk of torture or cruel, inhuman or degrading treatment[29]. Similarly, the European Court of Human Rights has dramatically extended the protection around the corresponding article 3 (prohibition of torture) of the 1951 European Convention. Most clearly in the case of Chahal v. UK, the Court points out that the prohibition of torture and hence the prohibition of any return to a real risk of torture are absolute, removing the possibility of refoulement of refugees on the basis of security risk or serious crime and a public danger[30].

In the case of Stewart v. Canada, the U.N. Human Rights Committee interpreted article 12 ("right to leave and return to one's country") of the 1966 CPR Covenant as prohibiting expulsion and hence refoulement in certain circumstances such as, for example, when the person is stateless. In its reasoning, the Committee presumes that the right to leave and enter would apply to certain non-citizens such as a stateless person. A recognized refugee would be in a substantially similar situation to that of a stateless person and would presumably enjoy the same right. Similar rights to leave and return exist in some regional human rights instruments and would be expected to carry the same obligation.

As noted above, some provisions of the 1951 Refugee Convention relate to the same right to freedom of movement. These provisions represent necessary affirmative measures to enable this right to travel out of and return to the country of refuge. The relevant articles are: Administrative assistance (art. 25); Identity papers (art. 27); Travel documents (art. 28). These articles evidently try to offset a disadvantage which refugees would otherwise suffer. It follows that these provisions of the 1951 Refugee Convention can be used by the Human Rights Committee, according to the non-discrimination doctrine, as relevant interpretive text for the application to refugees of article 12 of the 1966 CPR Covenant.

Refugees cannot be penalized for illegal entry (1951 Refugee Convention, art. 31). This provision does not appear in other treaties and may also be condidered as an affirmative measure in favour of refugees. This provision allows the Human Rights Committee (and other treaty bodies for their own specific objectives) to better interpret who is "lawfully within the territory of a State" (1966 CPR Covenant, art. 12 and 13) for the purpose of determining whether they enjoy 1966 CPR Covenant rights. Persons who have sought refugee status clearly qualify as being "lawfully within the territory" for the purpose of enjoying 1966 CPR Covenant rights, unless and until they have been finally determined not to be refugees. Moreover, such persons are often "detained" in some sense. In the practices of many States, asylum seekers will have their travel documents confiscated, or they will be in detention facilities or jails. As such, they are evidently under the jurisdiction of the detaining State for the purpose of applying human rights treaty standards.

The absence of a provision such as article 31 of the 1951 Refugee Convention in the 1966 CPR Covenant and 1966 ESCR Covenant does not signal that other groups of non-citizens can be denied rights on account of illegal entry. The provisions of the 1990 International Convention on the Protection of All Migrant Workers and Members of Their Families grant rights to the extent possible even to those migrant workers who do not enjoy regular status. Although not yet in force, this text has interpretive power for the application of other treaties to the defined population.

The U.N. Human Rights Committee has competence to deal with rights of entry and has done so in its case law[31] and in General Comment 15. This General Comment also deals with article 13 of the 1966 CPR Covenant, establishing the right of a non-citizen to a hearing in an expulsion procedure[32]. The U.N. Human Rights Committee can and should therefore examine States on their implementation of the immunity stated in article 31 of the 1951 Refugee Convention, as it can be considered as a necessary affirmative measure of non-discrimination with respect to entry rights of refugees.

Naturalization is normally a discretionary decision of a State, based on its territorial sovereignty. However, under article 34 of the 1951 Refugee Convention, States shall as far as possible facilitate naturalization of refugees. In the ordinary meaning of the text, "as far as possible" would require a State to show why it was not possible to confer naturalization where such a claim has been rejected. In the context of the non-discrimination doctrine of the human rights treaties, the State would be expected to allow the recognized refugee to naturalize in substantially similar way to that provided for other non-citizens who have been granted the right to remain on State territory. A contrario, circumstances in which 1966 CPR Covenant rights could be derogated under its article 4 might justify the suspension of the rights of refugee under article 34 of the 1951 Refugee Convention.

(d) The limitation of rights according to the lawfulness of the presence or residence of the refugee

At several points, the 1951 Refugee Convention defines rights as accorded only to refugees "lawfully on the territory" or to refugees "lawfully residing on the territory". Case law of human rights treaty bodies has made clear that words such as "legally" in an international text have an international meaning which may or may not coincide with that in domestic law. Thus, the word "criminal" in the 1950 European Convention may relate to procedures which are not so called in domestic law[33]. Dent has reviewed the several academic interpretations of these terms in the 1951 Refugee Convention[34]. Unfortunately, there is no treaty body to confirm or deny them. However, the context of the human rights treaty gives interpretive insights.

As noted above, the case law of human rights treaty bodies has shown that, often, the human rights treaties provide rights beyond limitations permited for governments under the 1951 Refugee Convention. Clearly, the protections against expulsion and refoulement do not depend on whether a person has been recognized by the State as qualifying for refugee status. In the case of Joseph v. Canada, Ms Joseph was underground when she submitted her complaint to the Inter-American Commission on Human Rights. The most reasonable conclusion is that a person on State territory whose presence is known to the authorities should be able to enjoy rights without discrimination. According to the doctrine of non-discrimination, this does not mean that differentiations cannot be made. It does mean however that the State is limited in the kinds of differentiations which can be made.The case of Celepli v. Sweden, in which the U.N. Human Rights Committee observed that the foreigner must be considered lawfully present at least for the purposes of litigating the right in question, is consistent with this view[35].

The 1951 Refugee Convention provides that a person may not be penalized for illegal entry. Logically, any person who claims refugee status in good faith cannot be barred from applying, for the sole reason of its illegal entry. Once she has applied, the person is lawfully on the territory for the purpose of litigating the right to seek asylum. If rejected, the person must be considered lawfully present pending deportation and any related proceedings if she is under the jurisdiction of the authorities, that is if the person is not in hiding[36].

As noted above, the asylum seeker who claims refugee status has submitted to a form of State custody. Her right to liberty is necessarily impaired. As noted above, the 1951 Refugee Convention restores full rights to liberty and freedom of movement to the recognized refugee by providing for identifying and travel documentation. The U.N. Human Rights Committee General Comment 21 on the right to liberty is relevant, as it provides that, when liberty is constrained, other rights should be limited no more than this deprivation of liberty requires[37].

It is clear from the international case law discussed above that, when important civil rights like asylum, life and freedom from torture are at issue, differentiations among non-citizens are nowadays generally inappropriate, since other 1951 Refugee Convention permitted limitations in expulsion have been set aside. To the extent that economic and social rights converge with civil rights, few if any differentiations would be possible. The State would not be justified in withholding normally available treatment for a life-threatening health condition for an asylum seeker or for a person whose claim to refugee status has been rejected. It is also clear from the almost universally ratified 1989 Convention on the Rights of the Child that there may not be significant differentiations for a child with respect to important rights such as education, health or development, on account of the status, or lack of it, of the child's parents.

International human rights jurisprudence has yet to make fully clear the extent to which particular State differentiations are permitted for social and economic rights for refugees and asylum seekers provided by the 1951 Refugee Convention in the human rights treaty context of non-discrimination. This is remarkable given the repeated affirmations of equality and non-discrimination found in the texts of all human rights treaties. The silence of the treaty bodies is even more remarkable given the extent to which matters such as the meaning of “lawfully staying” have been discussed in academic litterature. Ultimately, whether or not limitations of rights such as health are acceptable depends on the human rights treaty body applying the non-discrimination doctrine in any specific case under any specific treaty. So far, that has hardly happened. When it does in a case involving a refugee, the treaty body will in effect also have to interpret the corresponding provisions of the 1951 Refugee Convention.

3. The rights granted to refugees by comparison with citizens or other foreigners

Most articles of the 1951 Refugee Convention grant rights to refugees only by reference to citizens or to other classes of non-citizens. Many of these are economic, social and cultural rights. Rights in equality with citizens include: religion (art. 4) ; artistic rights (art. 14); court access (art. 16); rationing (art. 20); elementary education (art. 22.1); public relief (art. 23); labor legislation (art. 24); fiscal charges (art. 29). Rights in equality with other non-citizens include: exemption from reciprocity (art. 7.1); property (art. 13); association (art. 15); employment (art. 17.1); self-employment (art. 18); professions (art. 19); housing (art. 21); post elementary education (art. 22.2); freedom of movement (art. 26).

(a) Treaty human rights beyond the 1951 Refugee Convention

Article 5 of the 1951 Refugee Convention provides refugees with the benefit of rights outside the 1951 Refugee Convention. And article 6, which defines the expression "in the same circumstances", establishes how refugees are to be compared with either citizens or non-citizens, on the basis of the right at issue, which is key to comparatively applying other human rights treaties to refugee situations.

A State which has ratified other human rights treaties has agreed to provide rights to everyone on the territory without discrimination. The 1951 Refugee Convention has the effect of providing a basis for an individual to be legitimately on the territory of a state, in order to claim refugee status. Such a person may claim human rights treaty rights, such as those provided for in the 1966 Covenants, without discrimination. A refugee (claimant or recognized as such) qualifies for civil, political, economic, social and cultural rights beyond the 1951 Refugee Convention. Article 5 provides therefore a window through which refugees have an equal access to benefits under other treaties for a majority of the 1951 Refugee Convention rights. This window is particularly important for economic and social rights because many of these rights, such as the right to health, are described in far greater detail in other international instruments than in the 1951 Refugee Convention. Of particular importance is the 1966 ESCR Covenant because it is a universal instrument like the 1951 Refugee Convention and because its committee has the useful authority to examine reports from all States parties on a periodic basis and to provide General Comments which clarify the implementation of the treaty.

(b) Limits on 1966 ESCR Covenant economic, social and cultural rights

One of the authors has argued elsewhere that the intent of the U.N. human rights treaties on the ordinary meaning of their text is unambiguously and strongly in favour of equality or non-discrimination[38]. It is therefore surprising that the most important U.N. treaty bodies responsible for the 1966 CPR Covenant and the 1966 ESCR Covenant have failed to clarify the access of refugees and asylum seekers to economic, social and cultural rights without discrimination[39]. The little theoretical ambiguity in the 1966 ESCR Covenant does not allow for discrimination: article 2 of the 1966 ESCR Covenant provides that “developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”.

For any country, as noted above, article 26 of the 1966 CPR Covenant limits any differentiations in any rights and benefits so as to ensure non-discrimination. The rights or benefits include rights of the 1966 ESCR Covenant for the State party. For the State party to both treaties, discrimination against non-citizens is not permitted.

Also, some rights falling under the 1951 Refugee Convention, such as the right to health and related essential medical care, and the right to education, are not "economic". Here, the provisions of the 1966 ESCR Covenant would apply to refugees as part of "everyone".

What constitutes a developing country has yet to be established. Given the text of the article, not all countries can consider themselves to be "developing countries". It is unlikely that any member of the "G7" would qualify. Thus, for developed Western countries, any better provision of the 1966 ESCR Covenant would apply to refugees as part of "everyone".

In any event, the 1951 Refugee Convention is clear that, with respect to a key economic right — the right to work —, refugees lawfully residing are to be treated like nationals. Hence, for the purposes of the 1966 ESCR Covenant, it is clear that refugees may not be assumed to fall under provisions intended for non-citizens in general.

Article 5 of the 1951 Refugee Convention provides a window to the rights which are granted under the 1966 Covenants, which oblige the State to take measures, including legislation, as may be necessary to ensure the rights. "Ensure"[40] and "guarantee"[41] are strong words meaning "make certain"[42]. As we have argued, from the perspective of article 26 of the 1966 CPR Covenant, the 1951 Refugee Convention can be construed as an affirmative action instrument. It is thus, as a whole, a package of rights to be ensured by law. To avoid discrimination and ensure equal treatment before the law, the above differentiations should therefore be in law, which means that the 1951 Refugee Convention should be incorporated into domestic law in such a way as to make it effective.

The human rights treaties also require an effective remedy for the person who claims one of the treaty rights has been violated[43]. In the Americas, article 25 of the 1969 American Convention requires a "simple and prompt recourse, or any other effective recourse, to a competent court or tribunal against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention". From the case law of the Inter-American Commission on Human Rights, the right of asylum is at issue when the protection against refoulement of the 1951 Refugee Convention is too[44].

In order to "ensure" an effective remedy for the violation of any refugee right, good faith compliance with the 1951 Refugee Convention would require some form of incorporation into domestic law in States where treaties are not automatically incorporated and amenable to the courts.

4. Towards a fuller implementation of the 1951 Refugee Convention in its human rights treaty context

(a) "Supervision" by UNHCR

The 1951 Refugee Convention contains two unusual "executory and transition provisions" worth noting. The State is to facilitate U.N.H.C.R.'s duty of supervising the application of the 1951 Refugee Convention and is to supply specific information (art. 35, 36). In contrast with the treaty commissions or committees of other human rights treaties, the U.N.H.C.R. has not been allowed to develop an impartial mechanism for examining State compliance and issuing general guidance to States to facilitate a consistent application of the Convention[45]. Also, there are differences in the nature of U.N.H.C.R. as compared with a treaty committee. The treaty committee is created by the treaty for the singular purpose of examining reports on the treaty and/or examining individual complaints and giving views on alleged violations of rights. The U.N.H.C.R. has its own statute and primary responsibilities to protect refugees and to facilitate with States solutions for refugees. The nature of U.N.H.C.R. is that of an international diplomatic corps rather than that of an international legal body. Furthermore, as we have shown above, the provisions of the 1951 Refugee Convention fall under the competence of other treaty bodies for those States Parties which have also ratified such as the 1966 CPR Covenant and 1966 ESCR Covenant. The Human Rights Committee has considerable authority on account of the broad obligation to non-discrimination in granting rights and benefits under the 1966 CPR Covenant. Yet, to this date, this authority has not been fully exercised.

A key responsibility which falls to the U.N.H.C.R. is to facilitate "Conclusions" which clarify the 1951 Refugee Convention and to produce guidelines on the application of article 1, the definition. But, as we have argued, this definition would have to be applied in the current juridical context, that is inter alia without discrimination on any ground. In General Comment n° 18, the Human Rights Committee has established that "equal treatment before the law" is to be treated within the context of article 26 of the 1966 CPR Covenant. This would include ensuring equal treatment before the law in determining refugee status under the 1951 Refugee Convention. Monitoring such compliance falls within the competence of the Human Rights Committee.

(b) Role of a federal state

There is an unusual federal clause in article 41 of the 1951 Refugee Convention which requires federal governments to encourage states, provinces or cantons to take legislative action outside the federal legislative sphere. This clause has been overtaken by human rights treaties. Article 5 of the 1951 Refugee Convention allows persons governed to benefit from anything better which a State may offer. Article 26 (non-discrimination) of the 1966 CPR Covenant requires States Parties substantially to offer similar treatment of persons across the constituent units of a federation. Even for States which have not ratified it, the 1966 CPR Covenant serves as juridical context for any interpretation or application of the 1951 Refugee Convention.

This juridical context of non discrimination may go beyond the case of federations. One of the authors has noted elsewhere that such equal treatment may be required to extend across collectivities of States such as the European Union[46]. The equal treatment will apply to all the rights granted by comparison: education, health, etc. At the universal level, the Human Rights Committee is competent to request and examine State reports on such an issue.

It has been shown how almost all human right treaty bodies can, in applying the provisions of the treaty for which they are responsible, give effect to some provisions of the 1951 Refuge Convention by using them as interpretive tools in accordance with the 1969 Vienna Convention on the Law of Treaties. Almost all the measures of the 1951 Refugee Convention relate to substantive rights or non-discrimination already examined by the Human Rights Committee in its examination of State Reports under article 40 of the 1966 CPR Covenant. Rights relating to expulsion or extradition or non-refoulement and rights relating to freedom of movement and family life can be “litigated” before a range of regional and UN human rights bodies. Certain aspects of the 1951 Convention have been the basis of complaints to those regional human rights treaty bodies with power to adjudicate a right to seek and obtain asylum.

Yet, all these evolutions have taken place very slowly and with excessive caution over more than a decade. In particular, treaty bodies have been most reluctant to challenge the level of due process relating to fundamental rights at issue in expulsion or detention and have for the large part avoided the issue of discrimination on the basis of status in the nature of treatment as compared with citizens or other status of non-citizen. The equal treatment should apply to all the rights granted by comparison in the 1951 Refugee Convention, such as education, health, etc. However, the UN Committee on Economic Social and Cultural Rights, in its Concluding Observations and Recommendations on Canada, November 1998, only went so far as to suggest that it was inappropriate to deny a Convention refugee youth in Canada access to the student loan normally available to citizens for financing a university education.

In theory, there is no reason why treaty bodies could not use their powers to address State reluctance concerning the full application of human rights treaties to refugees and asylum seekers. These powers vary from treaty body to treaty body.

In Europe, the European Court of Human Rights could further develop its case law demonstrating how the 1951 European Convention limits State sovereignty over expulsion. The new developments should include consideration of whether it is legitimate for one State to forcibly return to another a non-citizen who has lived most of her life in that State and who became criminalized during residence there on account of the social conditions (the "double penalty" issue). There is evidently a transfer of rehabilitation and reintegration costs at issue, irrespective of the human rights issue itself. The European Court could revisit the appropriate due process for detention and fundamental rights at issue in expulsion taking into account the application of non-discrimination to that due process.

In the Americas, the Inter-American Commission on Human Rights has the competence to interpret treaties in the Americas and issue reports, and this includes interpretation of the 1951 Refugee Convention[47]. Since the application of the 1951 Refugee Convention refugee definition grants the right to seek asylum in accordance with international law, the Inter-American Commission on Human Rights could study and report on the application of article 1 of the 1951 Refugee Convention. The Commission can study and report on the important issue of due process and non-discrimination in granting the right to seek and obtain asylum or for expulsion of unsuccessful asylum seekers. It should do more. All fundamental rights, including the right to seek asylum, require a simple effective court remedy in the Americas[48].

The UN treaty bodies have a special role and capacity for developing and promoting Covenant standards. Like the 1951 Refugee Convention, the 1966 Covenants are universal in scope. The bodies have twin powers: 1) to issue General Comments on the application of the Covenants to a particular group or situation; and 2) to directly examine States on how the Covenants have been given effect by States parties in law and practice for the particular group or situation. This paper proposes guidelines which would allow these UN treaty bodies to draw on 1951 Refugee Convention provisions for the treatment of refugees and asylum seekers when examining the application of provisions of the particular UN human rights treaty.

(d) Guidelines for examining States' treatment of refugees and asylum seekers

The various UN treaty committees (the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee against Torture, the Committee on the Rights of the Child) have all developed and issued guidelines to help states parties submit reports on the implementation of the treaties[49]. However, the Human Rights Committee has the greatest experience[50]. These various guidelines are themselves jurisprudence which is juridical context when considering the implementation of the 1951 Refugee Convention by means of reporting.

The guidelines, which extend across the human rights treaties, can be divided to three categories:

1. general constitutional and legislative matters of incorporation of the treaty into domestic law;

2. article by article consideration of State case law and State practices alongside U.N. jurisprudence;

3. grouping of certain articles when their nature allows it for examination purposes. The Human Rights Committee has used recurring topic headings, such as "Non-Discrimination and Equality of the Sexes" and "Freedom of Movement and Expulsion of Aliens", which are used routinely to question States about the treatment of non-citizens, including refugees[51].

The Committee on Economic, Social and Cultural Rights has competence to consider whether refugees are enjoying economic, social and cultural rights without discrimination. According to the Manual on Human Rights Reporting[52], concerns about implementing measures and non-discrimination under article 2 are a high priority for this Committee. The Human Rights Committee has competence to consider the enjoyment of all civil and political rights of any person, including refugees, but has moreover jurisdiction to ascertain whether article 26 (non-discrimination) of the 1966 CPR Covenant is being observed when any rights are granted to or withheld from foreigners, including economic, social and cultural rights. The Committee against Torture has competence to consider whether refugees are subjected to cruel, inhuman or degrading treatment or punishment as a consequence of expulsion. The Committee on the Rights of the Child has competence to examine States with respect to their treatment of refugee children.

In the interests of a coherent application of all rights, the Human Rights Committee and the Committee on Economic, Social and Cultural Rights are best situated. They can include special obligations from the 1984 Convention against Torture and the 1989 Convention on the Rights of the Child within the examination and reporting of comparable articles under their own treaties.

For States which have ratified the human rights treaties, there is more than the legal context established by the text for compliance measuring. There is a reporting mechanism and a complaints mechanism which should be implemented by the human rights treaty committees to ensure refugees and asylum seekers enjoy rights on an equal footing with everyone else.

The framework which is most compatible with the several treaty committee guidelines, is the clause by clause framework and the State examination scheme for assessing compliance with the 1951 Refugee Convention in its current juridical context of the 1966 CPR Covenant .

Under the overarching U.N. principle of the sovereign equality of States, States are best treated equally in their examination on a treaty when they are systematically examined on all its articles, one by one, in accordance with published objective guidelines. Similarly, the examination of a State's constitutional and legal framework will follow the same questions and will take into account whether the legal system of a State can apply a treaty directly or whether legislation is required. Any groupings of articles must be objective and purely for reporting convenience.

Applying the principles to the 1951 Refugee Convention leads to guidelines such as those proposed in Appendix I.

(e) Resolving the jurisdictional dilemma

The Human Rights Committee has already asked States Parties about non-citizens in its examination of States’ reports, notably under a reporting heading "Non-Discrimination and the Equality of the Sexes" (1966 CPR Covenant, art. 40). The Committee should ask for and examine State supplemental reports on the more detailed application of non-discrimination to refugees and asylum seekers under provisions of the 1966 CPR Covenant which overlap with provisions of the 1951 Refugee Convention. It can issue General Comments on issues such as the protection of the refugee family or the application of the 1966 CPR Covenant to refugees and asylum seekers.

At the same time, States and the UN have clearly given the UN High Commissioner for Refugees a special role with respect to refugees. The paper has shown that the 1951 Refugee Convention provides that the UNHCR is to supervise the application of the Convention. Indeed, through the lens of the non-discrimination doctrine, this supervision by UNHCR could be viewed as a special measure for refugees as an international disadvantaged group. It would be unfortunate to deny refugees this special measure.

Thus, while the human rights treaty bodies can apply the human rights treaty provisions to everyone — clearly including refugees —, the UNHCR is intended to supervise the application of 1951 Refugee Convention provisions to refugees. This situation can be a pretext for the human rights treaty bodies' failure to promote rights as they apply to refugees at a time when Western governments — governments which have traditionally promoted full implementation of the human rights treaties for other groups, such as women — are evidently reluctant to extend the implementation of many rights in favour of refugees and asylum seekers.

A possible resolution of this dilemma is for the UNHCR to be present for the application of human rights treaty provisions to refugees. In this way, the ordinary meaning of the texts of both the human rights treaty and the 1951 Refugee Convention relevant to interpretation or application can be satisfied. Similarly, General Comments could be issued by the UN Human Rights Committee which are endorsed by the UNHCR. Given that States are ultimately responsible for implementing and enforcing treaties, it would be helpful for them to formally acknowledge the joint operation of the two UN bodies in this way. That could be done by means of an agreement reflected in an EXCOM Conclusion.

(f) Possible new mechanisms: it is time for another Protocol

The mechanism available to the UNHCR is the government process leading to annual EXCOM Conclusions. It is a powerful mechanism for developing new agreements between States relating to refugees. Indeed, EXCOM Conclusions have considerable interpretive power when they relate directly to the application of the 1951 Refugee Convention. As a consequence of the 1969 Vienna Convention on the Law of Treaties, treaty interpretation is in the context of subsequent agreements by the States parties. The Conclusions document such subsequent agreements by all EXCOM member States. Moreover, the Conclusions are subsequently endorsed in broad terms by a UN General Assembly Resolution. However, not all Conclusions will have equal interpretive effect. The Conclusions have considerable persuasive power in two situations. First, when States confirm the views of the UN High Commissioner for Refugees exercising her authority under 1951 Refugee Convention article 35 to supervise its application. Second, when States through the EXCOM Conclusion confirm the effects of a subsequent international human rights treaty such as the Convention against Torture on the application of 1951 Refugee Convention. This was the case with the application of the human rights treaties to the non refoulement provision discussed above.

In situations in which human rights treaty bodies are considering the application of their own treaty texts which overlap with 1951 Refugee Convention provisions for refugees and asylum seekers, the EXCOM process could provide a means to promote a clarification of the application of the human rights treaty provisions.

Yet serious gaps remain in the implementation of the 1951 Refugee Convention which the above suggestions cannot bridge. First, there is no independent body to interpret and guide States on the application of the 1951 Refugee Convention, most notably for its classical population of individual urban refugees. Secondly, there is no complaints mechanism. Implementation could be assisted by an international complaints mechanism specifically linked to the application of the 1951 Refugee Convention definition[53]. Third, it is time to update the 1951 Convention to take into account the dominant phenomenon of massive exoduses from generalized conflict or violence and the need for parallel temporary protection measures. The need is implicit in discussions under the auspices of the EXCOM undertaken so far. This millennial update would follow the 1967 Refugee Protocol update which took the 1951 Refugee Convention beyond the original time and geographic limitations. The EXCOM process offers a good means to move further in all these directions.

Conclusions

The 1951 Refugee Convention must be considered alongside and in the current juridical context of the UN human rights treaties and the current doctrine of non-discrimination. Within this context, the 1951 Refugee Convention, and more specifically the international refugee definition, constitutes a differentiation among non-citizens which falls under the international doctrine of non-discrimination. It can and should be subjected to more attention by various international treaty bodies, but especially the two principal UN human rights treaty committees.

The individual provisions of the 1951 Refugee Convention are almost all either civil, social or economic rights by comparison or affirmative measures to allow refugees to fully enjoy civil rights. As such, they are amenable to case law and monitoring by human rights treaty bodies such as the Human Rights Committee. The fact that the 1951 Refugee Convention is a component of the right to seek asylum in force in Africa and in the Americas means that this aspect can be the basis of complaints to or the basis of reports by the African or Inter-American Commissions on Human Rights.

Most of the rights by comparison can be promoted and monitored by regional treaty bodies, but the paper has considered especially the two bodies spanning the issues with universal jurisdiction — the Human Rights Committee and the Committee on Economic Social and Cultural Rights. Almost all the substantive rights in the 1951 Refugee Convention are complemented by rights provided for in the two 1966 Covenants. These committees have mechanisms which could, with additional resources, take on a more focussed implementation of the 1966 Covenants with respect to asylum claimants whose status as refugees is still pending, and the paper has shown how guidelines for doing this can be deduced from jurisprudence.

The U.N.H.C.R., which was intended to "supervise the application of the Convention" (1951 Refugee Convention, article 35), is no longer uniquely competent to do so because the U.N.H.C.R. is not competent to interpret the other treaties which must be interpreted alongside the 1951 Refugee Convention. Nor can U.N.H.C.R. pronounce the violation of a refugee right in an individual complaint against a State. The paper has shown how the ambiguity of responsibility can be resolved to allow the 1951 Refugee Convention and the UN human rights treaties to be applied to refugees and asylum seekers.

The paper has shown how the EXCOM process of the UNHCR can allow some aspects of the 1951 Refugee Convention to be interpreted through EXCOM Conclusions. It has suggested that new initiatives through the EXCOM could lead to a complaints mechanism around the application of the 1951 Refugee Convention definition. It has also been suggested that it is time to explore new mechanisms and an update of the 1951 Refugee Convention to take into account the new context of massive exoduses of refugees from generalized conflict or violence.

APPENDIX I

SAMPLE GUIDELINES FOR MONITORING

RIGHTS OF REFUGEES BY TREATY BODIES

The following is the framework of an article by article examination, with a grouping of articles where necessary to follow the framework developed by other treaty bodies, in order to facilitate reporting and examination by them.

Abbreviations :

CESCR = Committee on Economic Social and Cultural Rights

HRC = Human Rights Committee

IACHR = Inter-American Commission

1. General legal framework (1951 Refugee Convention, art. 35, 36, 38-46) (All treaty bodies)

· Conditions of refugees

· Extent of incorporation of the provisions of the 1951 Refugee Convention into domestic law, in whole or in part

· Territories

· Reservations, limitations and their legitimacy

· Federal State role

· Other treaties as article 5 of the 1951 Refugee Convention provides

2. Definition (1951 Refugee Convention, art. 1)

· Incorporation in law so as to ensure non-discrimination (HRC)

· Procedure and Legal Remedy (HRC, IACHR)

· Measures to ensure "equal protection" in application of definition (HRC, IACHR, CESCR)

· Domestic case law, as compared with EXCOM Conclusions and UNHCR Guidelines which have interpretive force (HRC, IACHR)

· Special Provision for Refugee Seamen (1951 Refugee Convention, art. 11) (HRC)

3. Non-discrimination and better benefit provisions (articles 3, 5, 6) (HRC, CESCR)

· Measures in law (HRC, IACHR)

4. Rights to be considered with civil and political rights under the 1966 CPR Covenant

· Religion (1951 Refugee Convention, art. 4; 1966 CPR Covenant, art. 18, 19) - Personal status (1951 Refugee Convention, art. 12; 1966 CPR Covenant, art. 6)

· Association (1951 Refugee Convention, art. 15; 1966 CPR Covenant, art. 22)

· Access to Courts (1951 Refugee Convention, art. 16; 1966 CPR Covenant, art. 14, 26)

· Freedom of Movement and Related Provisions (1951 Refugee Convention, art. 26; 1966 CPR Covenant, art. 12)

- Administrative assistance (1951 Refugee Convention, art. 25)

- Identity papers (1951 Refugee Convention, art. 27)

- Travel Documents (1951 Refugee Convention, art. 28)

· Expulsion (1951 Refugee Convention, art. 32; 1966 CPR Covenant, art. 13)

· Non-refoulement (1951 Refugee Convention, art. 33; 1966 CPR Covenant, art. 6,7,9,13; 1984 Convention against Torture, art. 3)

· Family (1966 CPR Covenant, art. 17, 23) [not in 1951 Refugee Convention ]

5. Rights to be considered with economic, social and cultural rights under the 1966 ESCR Covenant and as non-discrimination under article 26 of the 1966 CPR Covenant.

· Artistic rights (1951 Refugee Convention, art. 14; 1966 ESCR Covenant, art. ) - Wage Earning Employment and self Employment (1951 Refugee Convention, art. 17, 18; 1966 ESCR Covenant, art. 6, 7)

· Liberal Professions (1951 Refugee Convention, art. 19; 1966 ESCR Covenant, art. 15)

· Rationing (1951 Refugee Convention, art. 20; 1966 ESCR Covenant, art. 11)

· Housing (1951 Refugee Convention, art. 21; 1966 ESCR Covenant, art. 11)

· Public education, primary and general (1951 Refugee Convention, art. 22; 1966 ESCR Covenant, art. 13, 6.2)

· Public Relief (1951 Refugee Convention, art. 23; 1966 ESCR Covenant, art. 11)

· Labor legislation and Social Security (1951 Refugee Convention, art. 24)

· Labor (1951 Refugee Convention, art. 24.1.a, 24.2, 24.3, 24.4; 1966 ESCR Covenant, art. 11)

· Social Security (1951 Refugee Convention, art. 24.1.b, 24.2, 24.3, 24.4; 1966 ESCR Covenant, art. 7, 8, 9, 12)

· Family (1966 ESCR Covenant, art. 10) [not in 1951 Refugee Convention]