International Human Rights Law and Legal Remedies in Expulsion: Progress and Some Remaining Problems with Special Reference to Canada
| Published date | 01 December 1997 |
| DOI | 10.1177/092405199701500402 |
| Date | 01 December 1997 |
| Subject Matter | Article |
Part A: Articles
International Human Rights Law and Legal Remedies in
Expulsion: Progress and Some Remaining Problems with
Special Reference to Canada
Tom Clark and Sharryn Aiken
in collaboration with Barbara Jackman and David Matas'
Abstract
The article explores the international rights at issue in expulsion and the content
of
the
corresponding effective remedy required
of
a State. International treaty body jurisprudence
from individual cases is critically examined to expose progress and problems remaining
for both the rights and the effective remedy. References are made throughout to the
corresponding situation in Canada's domestic law. The article shows that when
fundamental rights such asfamily life are at issue, the domestic legal remedy must satisfy
conditions such as suspensive effect, access to courts and non-discrimination. The article
concludes with proposed measures for both States and international treaty bodies to clarify
the protection
of
rights in expulsion and to better ensure that international treaty rights
can be guaranteed in expulsion.
I Introduction
In his July 1996 document to the Sub-Commission on Prevention of Discrimination and
Protection
of
Minorities, Asbjorn Eide, current chairperson
of
the Sub-Commission,
:eferred to due process in the expulsion of non-citizens as a human rights issue requiring
tnternational attention.IThis article explores the promise of due process or fair trial and
an effective remedy when international rights of non-citizens are at issue in expulsion
proceedings, building on earlier work on non-citizens rights.'
. Lawyers and agencies in Canada working with non-citizens have experience with the
difficulties of protecting international rights which arise in expulsion and have increasingly
been compelled to seek remedies with the international human rights bodies. This article
Tom Clark is the Coordinator, Inter-Church Committee for Refugees, Barbara Jackman
of
Jackman &
Associates is counsel for the Canadian Council
of
Churches Court Action, David Matas is Chair of the
Immigration Section, Canadian Bar Association, Sharryn Aiken is President of the Canadian Council for
Refugees.
'The problem
of
deportation of aliens, which appears to be occurring to an increasing degree, should also
be investigated. Even legally resident aliens are increasingly being deported as an additional sanction when
they have committed unlawful acts, in spite
of
the hardship deportation can cause for their families. The need
for restrictions on deportations and expulsions should be investigated. More precise standards and
international monitoring appear to be required ...', Asbjorn Eide, 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 with Jan Niessen, 'Equality Rights and Non-Citizens in Europe and America: The
Promise, the Practice and 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 adapted from the submission made by a group
of
Canadian agencies during 1996 to the
Inter-American Commission on Human Rights.'
It has now been established in intemational human rights' law that certain rights,
including the right to family life, protection from torture and the right to due process, arise
in expulsion. An expelling State is accountable for protecting these rights. This article
identifies how these rights arise in expulsion and highlights a number
of
problems related
to the implementation
of
these rights in the Canadian context.
Intemational jurisprudence has established that a domestic remedy for the violation
of
a right must satisfy certain conditions if it is to be considered an effective remedy for
purposes
of
admissibility before an international human rights treaty committee or
commission. However, such international treaty bodies have not consistently applied the
same body
of
case-law in determining whether a State has fulfilled its obligation to
provide an effective remedy. This article sets out this body
of
case-law. Several
of
the
rights at issue in expulsion must be considered fundamental constitutional rights. The
Inter-American human rights system requires a certain form
of
due process when such
rights are at issue.
Two principles are used to interpret the human rights treaty obligations: the 1969
Vienna Convention on the Law
of
Treaties," Article 31; and the interpretation in the light
of
the evolution
of
the human rights system,' which includes existing jurisprudence and
also texts which qualify as a 'subsequent agreement' of the States Parties within the
meaning
of
Article 31
of
the Vienna Convention.
When fundamental rights are at issue in expulsion, a legal remedy must be a court
remedy, must be single-step, must be capable
of
addressing the right(s) at issue, must
provide aremedy for a violation without discrimination on any ground, must be 'effective'
in all the circumstances
of
the case and must satisfy due process provisions. The remedy
must have suspensive effect.
In Canada, a series
of
factors makes access to an effective legal remedy difficult and
unpredictable. Canadian law does not provide a secure, simple effective court remedy
without discrimination when fundamental rights
of
some non-citizens are at risk in
expulsion. Although Canada's refugee determination procedure has been widely acclaimed,
a critical flaw is the absence
of
a review or appeal on the merits for 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 rights issues. Provisions
of
the Immigration Act
sanction expulsion for persons, including Convention refugees, deemed a 'public danger'
or 'security risk'. The constitutionality
of
these administrative provisions is being
challenged in the Canadian courts. Immigration detention provisions and practices fall
short
of
international standards, but detention matters will not be considered in this article.
The Inter-American Commission granted a general hearing on 8 October 1996. Four Canadian agencies
combined to set out the nature of 'fair trial' in expulsion. This article is developed from thejoint submission
by ICCR, the Canadian Council of Churches, the Canadian Council for Refugees and the Canadian Bar
Association.
Vienna Convention on the Law of Treaties, 22 May 1964, UN Doc. A/Conf.38/27, 1969, 8 ILM, 1969, p.
679.
Interpretation of the American Declaration of Rights and Duties of Man Within the Framework of Article
64 of the American Convention of Human Rights, Advisory Opinion OC-1O/89
of
14 July 1989, Inter-
American Court of Human Rights, Series A, No. 10, 1990.
430
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