Economic, Social and Cultural rights and the Refugee Convention

Transcription

1 Economic, Social and Cultural rights and the Refugee Convention JUFN 20 International Migration Law Matthew Scott 5 February 2018

2 How to draw the line between economic migrants and refugees? if he is right, the majority... will not be returnable if they manage to reach the United Kingdom El Deaibes [2002] UKIAT html?utm=from_old_mobile

3 Outline 1. A human rights based approach to the refugee definition 2. Understanding Economic, Social and Cultural rights 3. Practical application

4 1. A human rights-based approach to being persecuted What is persecution?

5 What is persecution? Just a sample: 1. To seek out and subject (a person, group, organization, etc.) to hostility or ill-treatment, esp. on grounds of religious faith, political belief, race, etc.; to torment; to oppress (Oxford English Dictionary) 2. The infliction of suffering or harm in order to punish an individual for possessing a particular belief or characteristic the persecutor seeks to overcome (Matter of Acosta) 3. Harassment that is so constant and unrelenting that the victims feel deprived of all hope or recourse, short of flight, from government by oppression (Gladys Maribel Hernandez - Immigration Appeals Board of Canada 1983)

6 What to do with no express definition of persecution in the Convention? Article 31 of the Vienna Convention on the Law of Treaties 1969 requires: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to terms of the treaty in their context and in light of its object and purpose The preamble is expressly part of the context (Art 31(2)) Any relevant rules of international law applicable in the relations between the parties are also to be taken into account together with the context (Art 31(3)(c)

7 A human rights based approach to the refugee definition A systematic approach developed by Hathaway in 1991 Law of Refugee Status but recognising predecessors Defines persecution as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection Derives support for the definition from the first perambular paragraph CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination Also references the International Bill of Rights as an authoritative statement by the international community of the forms of harm that are unacceptable

8 Originally a 4-tier scheme Non-derogable civil and political rights Derogable civil and political rights Economic social and cultural rights subject to progressive realization without discrimination Rights recognised in the UDHR but not codified in the Bill of Rights i.e. right to own property

9 Michelle Foster Refuge from deprivation Endorses the Hathaway approach Rejects any notion of hierarchy between civil and political rights on the one hand and economic, social and cultural rights on the other Calls for a focus on the violation, rather than the right at issue Recognises that people move for multiple reasons, and forced migration may entail a combination of economic and political factors Emphasizes the interrelated and interdependent nature of human rights in accordance with the 1993 Vienna Declaration

10 To understand her argument, we need to understand ESC rights better

11 2. The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966

12 Overview 1. Overview of the ICESCR 2. 4 Misconceptions 3. Non-discrimination

13 1. The ICESCR overview UDHR Bifurcated covenants ICCPR and ICESCR

14 The instrument Part Content Article Part I Self Determination Article 1 Part II Overarching principles (progressive realisation, non-discrimination etc) Article 2-5 Part III Substantive rights Article 5-15 Part IV Reporting Article Part V Technical provisions 26-31

15 The substantive rights Article Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Content The right to work The right to just and favourable conditions of work Trade union rights The right to social security, including social insurance Protection of the family, including parental rights at work The right to an adequate standard of living The right to the highest attainable standard of health The right of everyone to education Obligation to introduce free primary school education Enjoyment of cultural life and benefit of scientific advances

16 2. 4 misconceptions a) Hierarchy of rights? b) Positive v negative obligations? c) Justiciable v non-justiciable? d) Progressive realization

17 a) Hierarchy

18 Vienna Declaration: Universal / indivisible / interdependent Vienna Declaration ,000 participants dismantled the hierarchy of rights 5. All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

19 b) Positive v negative obligations

20 What must states do to to comply with their obligations in relation to: Right Conduct Right to a fair trial Freedom of expression Good judicial system Interpreters Judges Legal aid Have a trial Appeal Don t kill journalists Protecting journalists/artists Prohibition on slavery, servitude and forced labour Right to food Right to education Duty to legislate/criminal prosecution Regulate legislate re land ownership Don t take people s food Protect from private actors i.e. regulate markets Provide food relief in disasters School

21 c) Justiciability

22 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 1997 Violations through acts of commission (a) The formal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed; (b) The active denial of such rights to particular individuals or groups, whether through legislated or enforced discrimination (c) The active support for measures adopted by third parties which are inconsistent with economic, social and cultural rights; (d) The adoption of legislation or policies which are manifestly incompatible with preexisting legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups; (e) The adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed; (f) The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure; (g) The reduction or diversion of specific public expenditure, when such reduction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for

23 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 1997 Violations through acts of omission (a) The failure to take appropriate steps as required under the Covenant; (b) The failure to reform or repeal legislation which is manifestly inconsistent with an obligation of the Covenant (c) The failure to enforce legislation or put into effect policies designed to implement provisions of the Covenant; (d) The failure to regulate activities of individuals or groups so as to prevent them from violating economic, social and cultural rights; (e) The failure to utilize the maximum of available resources towards the full realization of the Covenant; (f) The failure to monitor the realization of economic, social and cultural rights, including the development and application of criteria and indicators for assessing compliance; (g) The failure to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfilment of a right guaranteed by the Covenant; (h) The failure to implement without delay a right which it is required by the Covenant to provide immediately; (i) The failure to meet a generally accepted international minimum standard of achievement, which is within its powers to meet; (j) The failure of a State to take into account its international legal obligations in the field of economic, social and cultural rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations.

24 d) Progressive realisation What progress is enough?

25 Progressive realisation 2(1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. The core content Maximum of available resources Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986) General Comment No 3 The nature of states parties obligations

26 Prima-facie evidence of breach - GenCom 3 a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

27 Take steps to the maximum of its available resources What steps? Legislation, but note without other measures Other relevant measures (administrative, financial, social ) How to assess maximum available resources? Core content of a right how to identify? Non-discrimination Basic needs Procedural aspects Violations approach (focus on worst cases) Specific conduct; Non-discrimination; Minimum core Budget analysis Human expenditure ratio promotes accountability and monitoring But need also to look at outcomes Brazil Hunger Zero programme (tax system counterproductive)

28 3. Non-discrimination

29 Non-discrimination 2(2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights (GenCom 20) Can arise through acts or omissions Features Formal and substantive discrimination Direct and indirect discrimination Other status? Conduct required of the state

30 Non-discrimination 1: Formal and substantive discrimination Formal discrimination Constitution, law, policy documents. For example prevention on women inheriting property Substantive discrimination discrimination in practice States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination. For example, ensuring that all individuals have equal access to adequate housing, water and sanitation will help to overcome discrimination against women and girl children and persons living in informal settlements and rural areas. Special measures for some groups i.e. interpreting service for linguistic minorities; reasonable accommodation in relation to access to helathcare for people with disabilities

31 Non-discrimination 2 Differential treatment direct & indirect Direct discrimination when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground but note special measures of positive discrimination may be required to address historical disadvantage. Indirect discrimination Measures which have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration certificate for school enrolment may discriminate against ethnic minorities or non-nationals who do not possess, or have been denied, such certificates. Systemic discrimination Societal, entrenched, difficult to eradicate. For example caste-based discrimination.

32 Non-discrimination 3: States positive obligations Legislation Policies, plans and strategies Elimination of systemic discrimination Remedies and accountability Monitoring, indicators and benchmarks

33 Non-discrimination 4: The test States have the burden to establish that any differential treatment is reasonable and objective Determining whether a measure is reasonable and objective entails an assessment of whether the measure is legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society The measures and their impacts must be proportionate to the aim

34 Non-discrimination 5: Art 2(2) as a subordinate norm Must be connected to a substantive right (though no need to establish breach of the substantive right to establish breach of non-discrimination obligation) Different from Art 26 ICCPR, which is an autonomous norm

35 Break

36 3. Practical application in RSD a) General principles b) Scenarios

37 a) General principles

38 General principles 1. Main point is severity of the harm not nature of the right (but need not amount to threat to life or freedom!) 2. An accumulation of different experiences may amount to being persecuted when considered together see UNHCR Handbook para A human rights-based approach is not strictly necessary for determining claims relating to the denial of economic and social rights 4. No need to establish malign intent of actor of persecution and no need to establish positive act can be omission (Chen Shi Hai) 5. Lack of resources in home country does not prevent finding of persecution consider Thoukhrova v Gonzales on cerebral palsy in Russia consider SSHD v Sijakovic The harm need not result from violence or loss of liberty. An inability to earn a living or to fin anywhere to live can result in destitution and at least potentially damage to health and even life Consider Baballah v. John Ashcroft, 367 F 3d 1067 (9 th Cir. 2003) - economic persecution

39 b) Scenarios

40 Methodology 1. Does the claimant face discrimination on grounds of race, religion, nationality, membership of a particular social group or political opinion? 2. Does the claimant face (a real risk of) exposure to serious denials of human rights 3. Is there a connection between discrimination and exposure to serious denials of human rights

41 Does it matter if the state is doing its best? html?utm=from_old_mobile

42 A combination of rights violations Chen Shi Hai denial of food, health and education to black child under China s One Child Policy = persecution Gudja (Unreported, IAT, CC/59626/97) 5 August 1999 A concatenation of individual denials of rights; for example the right to work, to education, to health or to welfare benefits to such an extent that it erodes the very quality of life in the result that such a combination is an interference with a basic human rights to live a decent life. Ouda, 324 F 3d 445 (6 th Cir. 2003) a general campaign to prohibit Palestinians from working, attending school, buying food, obtaining water or obtaining drivers licenses.

43 Right to work 1. Often turn on the gravity of the violation described as mere discrimination if not sufficiently severe 2. Discriminatory exclusion from employment in the state sector Thalary v. Minister for Immigration and Ethnic Affairs (1997) 50 ALD 349 but consider cases that make the opposite finding Refugee Appeal No /99 RSAA, 16 December Relevance of being able to retain work relating to qualifications i.e. Romanian radiologist forced to work in farm labour Borca v INS 7F 3d 210 (7th Cir., 1996) 4. Relevance of support by other means i.e. Roma able to access social security R (on the Application of SSHD) v IAT CO/593/1999 Consider Softinet v INS, 196 F 3d 742 (7 th Cir. 1999) discrimination on basis of religion at work in Romania harassment, some detention, fear of unemployment on return persecution Indian woman precluded from teaching due to Christian faith factors considered include economic disadvantage, but more importantly, the fact that the state imposes or tolerates a system which precludes certain of its citizens from working in government employment for reasons of religion or political beliefs

44 Right to health OGW (Re), No. MA [2002] CRDD No. 53, 16 April 2002 a person with motor or physical disabilities in Burkina Faso cannot obtain medical care and medical personnel may refuse to care for them since they cannot touch them Reference N95/08165, RT, 6 June 1997 denial of access to medical care (here HIV treatment) Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005), United States Court of Appeals for the Ninth Circuit, 21 April 2005 Failure by state to provide medical treatment to child with cerebral palsy

45 Right to education the lack of educational opportunities for children often reinforces their subjection to various other human rights violations. For instance thse children, who may live in abject poverty and not lead healthy lives, are particularly vulnerable to forced labour and other forms of exploitation. (CRC Gen Com 11) SBO (Re) Nos. VA , VA , VA , VA [2003] RPDD No 17, 7 February 2003 minor claimants of Chinese origin were harassed and bullied in Peru so badly that they did not want to return to school, and unable to find another school had suffered denial of human dignity in a key way, as education is essential to the development and well-being of a child

46 Persecuted? if he is right, the majority... will not be returnable if they manage to reach the United Kingdom El Deaibes [2002] UKIAT Consider: Haven t you read A & Anor v MIEA HCA 1997; Chan, Can FAC 1993, or R v SSHD ex parte Jeyakumaran 1994 Imm AR 45? These conditions of existence reveal a sustained or systemic denial of basic human rights demonstrative of a failure of state protection ½ of Mumbai lives like this html?utm=from_old_mobile MPSG? Children from slums? Dalit children from slums?