- Regional Norms and Standards: The Americas (the Inter-American Human Rights System)
Migration-Related Detention and International Law
Regional Norms and Standards:
The Americas (the Inter-American Human Rights System)
Created in 1948, the Organization of American States (OAS) promotes cooperation in the Americas on a number of issues, including strengthening democracy, promoting human rights, and confronting issues of concern such as poverty and corruption. Today, its members comprise all of the states of the Americas, including those of Latin America, the Caribbean, and North America. The two main bodies within the OAS concerned with human rights protection are the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights. The basic instruments for the promotion and protection of human rights within the organization’s framework are the Charter of the Organization of American States (1948), the American Declaration on the Rights and Duties of Man (1948), and the American Convention on Human Rights (1969). Other relevant instruments adopted by countries in the region include the Cartagena Declaration on Refugees and the San José Declaration on Refugees and Internally Displaced Persons.
- American Declaration on the Rights and Duties of Man
- American Convention on Human Rights
- Inter-American Commission on Human Rights
- Relevant Decisions of the Inter-American Commission
- Inter-American Court of Human Rights
- Cartagena Declaration on Refugees
- San José Declaration on Refugees and Internally Displaced Persons
American Declaration on the Rights and Duties of Man (1948).Article I of the American Declaration on the Rights and Duties of Man determines that “Every human being has the right to life, liberty, and the security of his person.” The declaration also establishes that “No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law. … Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody” (Article XXV). Article XXVII protects the right to seek and receive asylum.
American Convention on Human Rights (1969). The American Convention on Human Rights protects the right to humane treatment and determines that “All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. (Art. 5.2). Article 7 of the convention, which protects the right to personal liberty, determines that:
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies (Art. 7).
Additionally, Article 22 of the American Convention, which establishes the right to freedom of movement, states it paragraphs 6-9 that:
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.
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.
9. The collective expulsion of aliens is prohibited (Art.22, Paras. 6-9).
Inter-American Commission on Human Rights (IACHR). The Inter-American Commission on Human Rights, created in 1959, is competent to promote the observance and defence of human rights in all member states of the OAS. The Inter-American Commission applies the American Declaration on the Rights and Duties of Man (1948) to all OAS member states despite the fact that it was not originally adopted as a legally binding treaty. This is done because the system’s monitoring bodies consider the American Declaration to be a source of international obligations for all member states. The American Convention on Human Rights (1969) , on the other hand, is applied only to those states that have ratified it (see IACHR Web site, “Basic Documents: Introduction”).
The Commission’s mandate is found in the Charter of the OAS (1948) and the American Convention (1969). The IACHR meets in ordinary and special sessions several times a year. The commission is competent to receive and investigate individual petitions that allege violations of either the American Declaration or the American Convention; submit cases to the Inter-American Court and appear before the court; request advisory opinions from the court regarding questions of interpretation of the American Convention; monitor the human rights situation in OAS member states and publish special reports; and carry out visits to countries in the Americas, which normally entails the preparation of a report (see Inter-American Commission on Human Rights Web site, “What is the IACHR”).
The IACHR also has established special enquiry mechanisms (Special Rapporteurships) on specific themes, including Special Rapporteurships on Migrant Workers and their Families and the Rights of Persons Deprived of Liberty. Both mechanisms have carried out visits to OAS member states.
The Rapporteurship on Migrant Workers, which generally has had a greater opportunity to examine the specific question of migrants in detention, has undertaken visits to and issued reports on the United States, Costa Rica, Guatemala, and Mexico.
In March 2008, the IACHR adopted the “ Principles and Best Practices for the Protection of Persons Deprived of Liberty in the Americas ” (Principios y Buenas Practicas sobre la Proteccion de las Personas Privadas de Libertad en las Américas 2008). The principles detail minimum standards applicable for the protection of persons in detention in the Americas , including the right to be treated humanely; the right to have timely judicial or equivalent review; the right to appeal; the right to legal assistance; and the right to have contact with the outside world. The principles also establish that asylum seekers or persons detained because of migration legislation should not be held in the same places of detention used to confine persons convicted or accused of criminal offences.
Relevant Decisions of the Inter-American Commission . Certain decisions by the IACHR have addressed issues of non-citizens and asylum seekers that can be relevant to the situation of immigration-related detention.
Regarding non-citizens in administrative detention for security reasons , the commission found that the following requirements must be satisfied: “[F]irst preventive detention, for any reason of public security, must be based on the grounds and procedures set forth in law; second, it may not be arbitrary; and third, supervisory judicial control must be available without delay. In situations of continuing detention, this necessarily includes supervision at regular intervals” ( Rafael Ferrer-Mazorra and other v the United States of America 2001, para. 212).
The commission also determined that detention review proceedings must comply with minimum standards of procedural fairness. The decision-maker must satisfy criteria established in article XXV of the American Declaration on prevailing standards of impartiality; the detainee must be given an opportunity to present evidence; and the detainee must have an opportunity to be represented by counsel or other representative ( Rafael Ferrer-Mazorra and other v the United States of America , April 4, 2001, para. 213).
Regarding the case of Haitian asylum seekers interdicted at sea and returned to Haiti the commission concluded that “the act of interdicting the Haitians in vessels on the high seas constituted a breach of the Haitians’ right to liberty within the terms of Article I of the American Declaration” (Haitian Boat People (United States of America) 1997 , para. 169).
Inter-American Court of Human Rights. The Inter-American Court was created by the American Convention on Human Rights (1969) and can issue binding judgments in cases alleging violations of the convention. The court’s jurisdiction to receive individual (contentious) cases is optional for states parties to the American Convention. The Court also issues advisory opinions on various aspects of human rights and the American Convention or other treaties concerning the protection of human rights in the American states.
In 1999, the Court issued an advisory opinion on the rights to information on consular assistance . The court conclude: “That Article 36 of the Vienna Convention on Consular Relations (1963) confers rights upon detained foreign nationals, among them the right to information on consular assistance, and that said rights carry with them correlative obligations for the host State” (Inter-American Court of Human Rights 1999).
In its advisory opinion on the rights of undocumented migrants , the Inter-American Court ruled that “the right to due process of law should be recognized within the framework of the minimum guarantees that should be provided to all migrants, irrespective of their migratory status. The broad scope of the preservation of due process applies not only ratione materiae but also ratione personae , without any discrimination” (Inter-American Court of Human Rights 2003).
Cartagena Declaration on Refugees (1984). An important instrument adopted at the Latin American level is the Cartagena Declaration on Refugees . The declaration was adopted in 1984 by a group of governmental experts and eminent jurists from the region and focused on the situation of Central American refugees. The declaration sets forth a broader definition of a “refugee” than that of the 1951 Convention relating to the Status of Refugees. In addition to the categories of persons covered in the Refugee Convention, the Cartagena Declaration states that refugees include persons who have fled their countries because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances that have seriously disturbed public order.
San José Declaration on Refugees and Internally Displaced Persons (1994). In 1994, the San José Declaration on Refugees and Internally Displaced Persons was adopted by participants at a colloquium in San José , Costa Rica , commemorating the 10th anniversary of the Cartagena Declaration. The San José Declaration re-affirms the importance of the Cartagena Declaration as a protection tool in Latin America and refers to the need to address the plight of internally displaced persons in the region.