3.         Right to Participate in Government

372.      Finally, in light of the central role that democratic principles and institutions play in the inter-American system, mention must be made of the right to participate in government, prescribed in both Article XX of the American Declaration[860] and Article 23 of the American Convention.[861] As this Commission has long recognized and as historical experience in this Hemisphere has demonstrated, governments derived from the will of the people, expressed in free elections, are those that provide the soundest guarantee that the basic human rights will be observed and respected.[862] So significant have OAS member states considered the right to representative government for the foundation of human rights protections that it is counted among those rights that may not be suspended, even in states of emergency.[863]

373.      Under all circumstances, therefore, including during times of armed conflict, member states must ensure for their citizens the political rights and opportunities prescribed under the inter-American human rights instruments, subject only to such regulations that may be based upon age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings. Indeed, it is only through the protection of these rights that the effective protection through the rule of law of fundamental freedoms can be guaranteed. As the Inter-American Court of Human Rights has observed, “[i]n a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.“[864] Of particular pertinence to full and free participation in elections and other democratic activities, states should avoid legislation that broadly criminalizes the public defense (apologia) of terrorism or of persons who might have committed terrorist acts without requiring an additional showing of incitement to lawless violence or to any other similar action should be avoided.[865]

374.      The rights and freedoms canvassed above are among the additional, though by no means exhaustive, human rights protections which may have significant implications for the means and methods employed by states against terrorism. The Commission wishes to emphasize in this respect the overriding significance of the principles of necessity, proportionality, humanity and non-discrimination in all circumstances in which states purport to place limitations on the fundamental rights and freedoms of persons under their authority and control.  

H.         Migrant Workers, Asylum Seekers, Refugees and other Non-Nationals

375.      Among those persons most vulnerable to human rights violations in the development and execution of counter-terrorist measures are persons who find themselves in the territory of a state of which they are not nationals, including migrant workers, refugees and those seeking asylum from persecution. Experience indicates that states’ domestic and international initiatives in fighting terrorism often have a direct and negative impact on the rights and interests of non-nationals. For example, as part of their anti-terrorism strategies, states frequently use their immigration laws to arrest, detain and deport non-nationals, adopt new and more restrictive immigration control measures that further limit the conditions under which non-nationals may enter or remain in the states’ territory, and gather and share private information concerning non-nationals. Some of these measures arise from states’ commitments under multinational anti-terrorism instruments, which frequently address matters such as cooperation on border control, mutual legal assistance, and conditions for denying refugee status,[866] but which should not, as noted below, be interpreted or applied in a manner inconsistent with states’ human rights obligations.

376.      In this context, the Commission considered it instructive to include a separate section in this report addressing several fundamental human rights as they pertain to non-nationals in the context of anti-terrorist strategies,[867] in particular the right to personal liberty and security, the right to humane treatment, the right to due process and to a fair trial, and the obligation to respect and ensure, non-discrimination and the right to judicial protection. This analysis should be considered to supplement the generally-applicable protections canvassed in the previous chapters of this report.

            377.      At the outset, the Commission wishes to emphasize the fact that OAS member states have undertaken through Article 15 of the Inter-American Convention Against Terrorism the obligation to ensure that the measures carried out by the states parties under that Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms, and that nothing in the Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, including international refugee law.[868] This provision is consistent with the Commission’s previous observation that, when interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other international treaties. These include instruments of particular pertinence to non-nationals, including the Vienna Convention on Consular Relations,[869] the UN Convention relating to the Status of Refugees[870] and its Additional Protocol,[871] and the International Convention on the Elimination of all Forms of Racial Discrimination.[872] Many of the norms and principles under these treaties also reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system.

1.         Right to Personal Liberty and Security

378.      As noted in Part III(B) above, this Commission, like other international human rights bodies, has recognized that the deprivation of an individual’s liberty may be justified in connection with the administration of state authority beyond the investigation and punishment of crimes where measures of this nature are strictly necessary. Such circumstances have been held to include, for example, detention in the context of controlling the entry and residence of non-nationals in a state’s territory and confinement for reasons relating to physical or mental health.[873] While deprivations of liberty may be permissible in situations of this nature, the Commission has emphasized that any such detention must in all circumstances comply with the requirements of preexisting domestic and international law. As described above, these include the requirement that the detention be based on the grounds and procedures clearly set forth in the constitution or other law and that it be demonstrably necessary, fair and non-arbitrary. Prolonged incommunicado detention is prohibited; rather, detention for any extended period must be subject to supervisory judicial control without delay and, in instances when the state has justified continuing detention, at reasonable intervals.[874]

379.      Additionally, the Commission has stated that immigration legislation must recognize the right to liberty of non-nationals, subject, however, to the qualifications discussed below concerning situations of international armed conflict. The grounds and procedures by which non-nationals may be deprived of their liberty should define with sufficient detail the basis for such action, and the State should always bear the burden of justifying a detention. Moreover, authorities should have a very narrow and limited margin of discretion, and guarantees for the revision of the detention should be available at a minimum in reasonable intervals.[875]  

380.      In the case of asylum seekers in particular, the Commission notes that detention or other restrictions on the movement of asylum seekers are permitted only as exceptions under applicable refugee and human rights law, and then only pursuant to law and subject to due process protections.[876] Measures aimed at the automatic detention of asylum seekers are therefore impermissible under international refugee protections. They may also be considered arbitrary and, depending upon the characteristics of persons affected by any such restrictions, potentially discriminatory under international human rights law.

381.      Where the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals outside of situations of armed conflict is concerned, international jurisprudence, including that of the inter-American human rights system, has recognized the importance of compliance with international obligations aimed at protecting the particular interests of foreign nationals. These obligations include the requirements of Article 36 of the Vienna Convention on Consular Relations, which provides:

1.             With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a)           consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;  

(b)           if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c)           consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2.             The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.[877]

382.      These provisions have been described as establishing an interrelated regime designed to facilitate the implementation of the system of consular protection of foreign nationals in states party to the treaty.[878] Under this regime, a state party is obliged to inform foreign nationals who are detained in any manner by that state, whether criminal, administrative or otherwise, of their right to have the consulate of their state notified of the detainees’ circumstances and the detainee’s right to communicate with his or her consulate. In the realm of international human rights law, the right to consular notification has been recognized as significant to the due process and other rights of detainees by, for example, providing potential assistance with various defense measures such as legal representation, gathering of evidence in the country of origin, verifying the conditions under which the legal assistance is provided and observing the conditions under which the accused is being held while in prison.[879] Accordingly, the Commission considers compliance with the consular notification requirements under the Vienna Convention on Consular Relations to constitute a fundamental aspect of guaranteeing to non-nationals the right to personal liberty and security and, as discussed below, the right to due process and to a fair trial.

383.      In the particular situation of international armed conflicts, however, it must be recognized that the regime of international humanitarian law governing such conflicts includes detailed provisions governing the detention of combatants, as discussed in Parts II(C) and III(B) above. These include, for example, mechanisms by which detailed information concerning prisoners of war is to be gathered and provided to the concerned parties to the conflict and to next of kin.[880] In the Commission’s view, therefore, this specialized regime should be referred to as the applicable lex specialis in interpreting and applying the right to personal liberty and security of detained combatants in situations of international armed conflict.

[ TABLE OF CONTENTS | PREVIOUS | NEXT ]