International Human Rights Law and Legal Remedies in Expulsion: Progress and Some Remaining Problems with Special Reference to Canada
| Author | ,Sharryn Aiken,Tom Clark |
| DOI | 10.1177/092405199701500402 |
| Published date | 01 December 1997 |
| Date | 01 December 1997 |
Part A: Articles
International Human Rights Lawand Legal Remedies in
Expulsion: Progressand Some RemainingProblems with
Special Reference to Canada
Tom Clark and Sharryn Aiken
in collaboration withBarbara Jackman and David Matas'
Abstract
The article explores the international rights atissue in expulsion and the content
of
the
corresponding effective remedy required
of
a State.Internationaltreaty body jurisprudence
fromindividual cases iscriticallyexamined to expose progressand problems remaining
forboth the rightsandthe effective remedy. Referencesare made throughouttothe
corresponding situation in Canada's domestic law.The article showsthat when
fundamental rights suchasfamilylife are atissue,thedomesticlegalremedymust satisfy
conditions such as suspensiveeffect, access to courts and non-discrimination.The article
concludes with proposed measures forboth States andinternationaltreaty bodiestoclarify
the protection
of
rights in expulsion and to better ensure that internationaltreaty rights
can be guaranteed in expulsion.
I Introduction
In his July1996 document to theSub-Commission on Preventionof Discriminationand
Protection
of
Minorities, AsbjornEide, currentchairperson
of
the Sub-Commission,
:eferred to due process inthe expulsionofnon-citizensas a human rightsissue requiring
tnternational attention.IThis article explores the promise ofdue process or fair trial and
an effective remedywhen internationalrights of non-citizensare atissue in expulsion
proceedings,buildingon earlier workon non-citizens rights.'
.Lawyers and agencies in Canada working with non-citizenshave experience with the
difficultiesof protectinginternational rightswhich arisein expulsion and have increasingly
been compelled to seek remedies with the international human rights bodies. This article
Tom Clarkis the Coordinator, Inter-Church Committeefor Refugees, Barbara Jackman
of
Jackman &
Associates is counsel for the Canadian Council
of
Churches Court Action, David Matas is Chair ofthe
Immigration Section, Canadian Bar Association,Sharryn Aikenis PresidentoftheCanadianCouncilfor
Refugees.
'The problem
of
deportation ofaliens, whichappears to beoccurringto anincreasing degree,shouldalso
be investigated. Even legally resident aliens are increasingly being deported as an additionalsanction when
they have committed unlawful acts, in spite
of
the hardship deportation can cause fortheir families. The need
for restrictions on deportationsand expulsions should beinvestigated. More precise standardsand
international monitoring appeartobe required ...', AsbjornEide,Working Paper. Comprehensive
Examination
of
Thematic Issues Relating to Racism, Xenophobia. Minorities and Migrant Workers, UN Doc.
E/CN.4/Sub.2/1996/30, paragraph 47.
Tom Clark in collaboration withJan Niessen, 'Equality Rights and Non-Citizensin Europe and America: The
Promise, the Practiceand Some Remaining Issues', NQHR, Vol.14,
No.3,
1996, p. 245.
Netherlands Quarterly
of
Human Rights.Vol. 15/4,
429-455.
1997.
toNetherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 429
NQHR
4//997
is adaptedfromthe submission made by a group
of
Canadian agencies during1996 to the
Inter-American Commission on Human Rights.'
It has now been established in intemational human rights' law that certainrights,
including the rightto familylife, protection from tortureand therightto dueprocess,arise
in expulsion.An expelling Stateis accountable for protecting these rights. This article
identifieshow these rightsarise in expulsionand highlightsa number
of
problems related
to the implementation
of
these rightsin the Canadian context.
Intemational jurisprudence has established that adomestic remedy for theviolation
of
a right mustsatisfy certainconditionsif it is to be considered an effective remedy for
purposes
of
admissibility before an international human rights treatycommittee or
commission. However, such internationaltreaty bodieshave not consistently applied the
same body
of
case-law in determining whether a State has fulfilledits obligation to
provide an effective remedy. Thisarticle sets out this body
of
case-law. Several
of
the
rights atissue in expulsion mustbe considered fundamental constitutional rights. The
Inter-American human rights system requires a certain form
of
due process when such
rights areat issue.
Two principles are used to interpretthe human rightstreatyobligations: the 1969
Vienna Convention on the Law
of
Treaties," Article31; and the interpretation in the light
of
the evolution
of
the human rights system,' whichincludes existing jurisprudence and
also texts whichqualifyas a 'subsequent agreement' of the States Parties withinthe
meaning
of
Article 31
of
the Vienna Convention.
When fundamental rights areat issue in expulsion,a legal remedymustbe a court
remedy,must be single-step, must be capable
of
addressing the right(s)atissue, must
provide aremedy for a violationwithout discriminationon any ground,mustbe'effective'
in all the circumstances
of
the case and must satisfydue process provisions.The remedy
must have suspensive effect.
In Canada, a series
of
factorsmakes access to an effectivelegal remedydifficult and
unpredictable. Canadian law does notprovide a secure,simpleeffectivecourt remedy
without discrimination when fundamental rights
of
some non-citizens are at riskin
expulsion. Although Canada's refugee determination procedure has been widelyacclaimed,
a criticalflaw is theabsence
of
a reviewor appeal onthe meritsfor a non-recognised
refugee. There are other deficiencies.Existing administrative remedies fail to adequately
address the circumstances
of
persons who may not be Convention refugees, but whose
expulsions raise compeIling human rightsissues. Provisions
of
the Immigration Act
sanction expulsion for persons, includingConvention refugees, deemed a 'public danger'
or 'security risk'. The constitutionality
of
these administrative provisions is being
challenged in the Canadian courts. Immigrationdetention provisions and practices fall
short
of
international standards, but detentionmatterswill not be considered in this article.
The Inter-AmericanCommissiongranted a general hearing on 8October1996. Four Canadian agencies
combinedtoset outthe natureof'fairtrial'in expulsion.This articleisdeveloped fromthejoint submission
by ICCR, the CanadianCouncil of Churches, the Canadian Council for Refugees andtheCanadianBar
Association.
Vienna Convention on the Lawof Treaties, 22 May1964, UN Doc. A/Conf.38/27,1969, 8ILM,1969, p.
679.
Interpretation of the American Declaration of Rightsand Duties ofMan Within theFramework ofArticle
64 of the American Conventionof Human Rights, Advisory Opinion OC-1O/89
of
14 July1989, Inter-
American Courtof HumanRights,Series A, No.10, 1990.
430
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