VI.   RECOMMENDATIONS

          In light of the above, the Commission recommends the following:

          1.    Member states should guarantee conditions that enable people to gain access to food, health services and education, and should fully enforce minimum wage laws. To this end, member states should reform basic economic and political structures that inhibit the development of such conditions.

          2.    When formulating domestic economic policies, member states should guarantee an economic environment that will enable the poor to participate in the political and economic decision making processes. As an example, member states should promote respect for labor unions, including their rights to organize, bargain collectively and conduct strikes with the state playing a neutral role.

          3.    Member states should ensure that socially disadvantaged groups, particularly minorities, do not suffer disproportionately from economic adjustment measures.

          4.    When formulating the initial study for economic structural adjustment programs and the development and financial institutions with which they work, member states should avoid programs that exacerbate the conditions of the poor.

          5.    The Secretary General should appoint a Special Rapporteur to study and devise methods to monitor and supervise economic adjustment measures that affect the enjoyment of economic, social, and cultural rights. The Rapporteur's assignment should include the establishment of institutional arrangements between economic agencies, human rights agencies, and the states concerned.

          6.    States which have not yet done so should ratify the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, "Protocol of San Salvador," and other relevant international instruments. States should establish legislation that makes those rights meaningful and effective.

          7.    Social data is critical to the development of plans for improving economic, social and cultural rights. Hence, member states should institute methods for social and economic data collection and report this information annually to the Executive Committees of the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture as stipulated in article 42 of the American Convention. In the process of preparing the reports, wide participation by citizens and nongovernmental organizations should be encouraged.

II.  THE SITUATION OF REFUGEES, DISPLACED PERSONS, AND REPATRIATES IN THE AMERICAS

          INTRODUCTION

          In response to recommendations of the OAS General Assembly contained in resolution AG/RES. 1214 (XXIII-0/93), the Inter-American Commission on Human Rights has prepared this study of the current state of protection for refugees, displaced persons, and repatriates in the Americas. 

          Through this study, the Commission hopes, in particular, to highlight rights and protections in human rights and humanitarian law, and to demonstrate the applicability of existing international law to the growing phenomenon of internally displaced persons and repatriates.  This study also reviews the work and reaffirms the commitment of the Inter-American Commission on Human Rights ("Commission") in working toward solutions to problems of refugees, displaced persons, and repatriates. 

          When human beings are constrained to leave their homes because of fear or as a matter of survival, they become much more vulnerable to human rights abuses. As such, the Commission stresses the need to include the protection of refugees, repatriates, and internally displaced persons within the mandate of the regional human rights mechanisms.

          I. BACKGROUND

          During the 1980s, situations of violence and conflict forced over two million Central Americans to leave their homes.  The majority of these people fled to neighboring countries, prompting the establishment of refugee camps monitored by the United Nations High Commissioner for Refugees ("UNHCR") and various non-governmental organizations ("NGOs") in Southern Mexico, Honduras, and Costa Rica.  The UNHCR, however, could only address the needs of about 200,000 -- or 7.5 percent -- of the total number of refugees, leaving the rest to fend for themselves.[15]

          As the number of refugees increased, many Latin American nations recognized the need to include resolution of these problems in their work toward achieving peace and stability in the region.  Both the 1986 Contadora Act for Peace and Cooperation, a peace proposal negotiated by the Contadora group (Mexico, Colombia, Venezuela, and Panama), and the 1987 Esquipulas II Peace Accords signed by the five Central American countries, (Guatemala, Honduras, Nicaragua, El Salvador, and Costa Rica) recognized that the attainment of peace was linked to resolution of the refugee problem.  As a follow-up to Esquipulas II in 1988, the Central American presidents completed the San Salvador Communiqué, proposing a plan to address the refugee problem.  The plan included a request that the United Nations ("UN") convene an international conference on the problems of refugees, displaced persons, and repatriates in the region. 

          The UN responded, first with a General Assembly proposal to create a Special Plan of Economic Cooperation for Central America (PEC), and then with the convening of the first International Conference on Central American Refugees (CIREFCA), held in May, 1989.[16]  CIREFCA proved to be a decisive forward step in addressing burgeoning refugee problems in Central America because the Plan of Action signed at its conclusion committed the governments of that region to enact specific measures with respect to refugees, displaced persons, and repatriates.  In addition, the participating countries promised non-discriminatory treatment of refugees; assured the rights of refugees and displaced persons to return home in conditions of security and personal dignity; pledged to include affected populations in the reintegration process; and acknowledged the crucial role of NGOs. 

          As a result of peace initiatives and the end of internal conflicts in the 1990s, the locus of concern with respect to refugees has gradually shifted from being one of ensuring safety and integration in the country of asylum, to that of assisting in the repatriation of refugees to their countries of origin.  Repatriations, which began on a large scale with the 1987 return of 4,300 Salvadorans from the refugee camp in Mesa Grande, Honduras, have continued both formally, with UNHCR assistance, and informally from the camps in Honduras and Costa Rica.  The camps in those two countries are now closed, and current international focus is on the repatriation of Guatemalan refugees from Mexico. 

          The current decade has also been marked by a growing awareness of the problem of internally displaced persons throughout Latin America, a problem attributable not only to continued violence and repression in countries such as Guatemala and El Salvador, but also to the effects of guerilla violence and narcotics trafficking in countries such as Peru, Colombia, and Bolivia, and environmental degradation in countries such as Ecuador.

          International response to internal displacement has been one of increased acknowledgment that it is a matter of international concern, most strongly evidenced

by statements and reports from Executive Committee of the UNHCR[17] and by international focus on the plight of internally displaced persons in the Central American countries - particularly in Guatemala and El Salvador.  Unfortunately, there have been few international efforts to address the problems of internal displacement in South America.

          Finally, the situation of the Haitian refugees has added an additional dimension to the problem of refugees in the Americas.  Since the September 1991 military overthrow of the Aristide government, severe repression and difficult economic conditions have led to a massive exodus of Haitians from Haiti to countries such as the United States and The Bahamas.  Since 1991, over 50,000 Haitians have left the country, many of whom perished en route to the United States.  Thousands others were "turned back" on the high seas in keeping with the United States' controversial policy for screening the Haitian boat people.[18] It is estimated that approximately 300,000 Haitians are internally displaced with those numbers mounting as people flee their homes and seek refuge in other parts of the country.

          Thus, in addition to the mass exodus refugees spurred on by internal conflicts, there is yet another growing category of migrants who are either victims of natural disasters, or are fleeing the violence of drug trafficking or efforts taken to repress it. In the vast majority of these cases, these people are undocumented and/or live a precarious state of constant migration.[19]

          II.   SOURCES AND SYSTEMS OF PROTECTION

          A.    INTERNATIONAL LEGAL INSTRUMENTS

          International protection for uprooted populations exist not only in international refugee law, but also in international human rights and humanitarian law.  The tensions that sometimes result from attempts to harmonize these three bodies of law stem in part from their different conceptual bases.  Refugee and humanitarian law grew out of the international community's attempt to address the massive displacements caused by World War II within the framework of sovereign states.  As such, these bodies of law emphasize the non-return, assimilation, and the treatment of civilians during conflict.  In contrast, human rights law is based on the premise that each human being has certain fundamental rights which are not matters for negotiation by or among states.  Thus, human rights law may serve refugees, displaced persons, and repatriates in ways that refugee and humanitarian law cannot, by providing them with broader principles to establish their rights to certain protection from states. 

          B.    REFUGEE LAW

          The 1951 Convention relating to the Status of Refugees[20] ("1951 Convention") and the 1967 Protocol relating to the Status of Refugees[21] ("1967 Protocol") are the primary international legal instruments governing the status and protection of asylum seekers, refugees, and others who have crossed borders and who are unable or unwilling to return to their countries of origin for fear of persecution.  The 1951 Convention was specifically created to address the interim refugee situations caused by World War II ("WWII") and thus places heavy emphasis on the rights of non-return and assimilation.  The 1967 Protocol expanded the applicability of the 1951 Convention by removing the geographical and temporal language which had limited the Convention to persons displaced by the events of WWII.

          The definitive factor characterizing the 1951 Convention and the 1967 Protocol is a limitation of the term "refugee" to persons who have left their country of origin.    Article 1(A)(2) of the 1951 Convention, as amended by article 1(2) of the 1967 Protocol, defines a refugee as any person who,

          owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.

          In other words, the protections granted by these international treaties do not apply to displaced persons still within their countries of origin, and no right of recognition as a refugee exists until a person arrives in a country that is a state party to the 1951 Convention and 1967 Protocol.

          Regarding remedies for violations of the 1951 Convention and/or 1967 Protocol, refugees are at least nominally guaranteed a domestic remedy via free access to courts in the country of refuge, according to article 16 of the 1951 Convention.  Article 4 of the Protocol permits state parties to refer disputes regarding the interpretation or application of the Protocol to the International Court of Justice ("ICJ"); but this provision does not, in reality, guarantee refugees access to the ICJ as it is highly improbable that a country of refuge would ever intervene on a refugee's behalf.

          C.    INTERNATIONAL HUMANITARIAN LAW

          Unlike refugee law which only protects persons who have fled their countries of origin, humanitarian law contains specific provisions which protect persons displaced within their countries because of war and domestic conflict.  For example, article 3, common to the four 1949 Geneva Conventions, accords "persons taking no active part in the hostilities," which can be construed to include displaced persons and repatriates, the right to "be treated humanely" in all circumstances. 

          The Geneva Convention relative to the Protection of Civilian Persons in Time of War ("Fourth Geneva Convention")[22] contains provisions which are applicable to refugees and displaced persons.  In particular, article 44 addresses the protection of refugees and displaced persons, and article 73 of the Protocol I Additional to the Geneva Conventions[23] stipulates that refugees and stateless persons are considered protected persons under parts I and III of the Fourth Geneva Convention.

          Nevertheless, the protection that international humanitarian law affords civilians is limited to situations of internal armed conflicts and does not apply to lesser situations of internal strife.

          D.    HUMAN RIGHTS LAW

          For refugees, asylum seekers, and displaced persons, the Universal Declaration of Human Rights ("Universal Declaration")[24] is an important legal instrument because it reaffirms and extends many of the rights guaranteed in international refugee law.  With regard to the recognition of a general right of asylum, article 14(1) of the Declaration states that, "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." 

          Thus, unlike the 1951 Convention and the 1967 Protocol, the Universal Declaration recognizes a right of asylum prior to entry into the country of refuge.  Also unlike 1951 Convention and 1967 Protocol, the Universal Declaration does not qualify the term persecution, thus presumably extending the right with regard to all forms of persecution, except as stated in article 14(2) "in the case of prosecutions arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations."  The 1966 International Covenants on Civil and Political Rights[25] and on Economic Social and Cultural Rights[26] codify and reinforce many of the principles contained in the Universal Declaration of Human Rights.

          Other multilateral treaties and United Nations resolutions addressing displaced populations and duties of states with respect to these groups include:  the Statute of the Office of the United Nations High Commissioner for Refugees;[27] the Constitution of the International Refugee Organization;[28] the Convention relating to the Status of Stateless Persons;[29] and the Convention on the Reduction of Statelessness.[30]

          E.    REGIONAL INSTRUMENTS

          1.    American Declaration on the Rights and Duties of Man and the American Convention on Human Rights

          In contrast to the 1951 Convention and 1967 Protocol which focus on the right of non-return, the American Declaration of the Rights and Duties of Man ("American Declaration") and the American Convention on Human Rights of 1969 ("American Convention"), speak of the right to seek and receive asylum once a person is in a country of refuge.  The American Declaration recognizes a broad right of asylum in article 27, which states that "[e]very person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements."

          With respect to protections afforded refugees, the American Convention differs from the American Declaration in two important respects.  First, the American Convention recognizes in article 22, an individual right of asylum that is more limited in scope than that of the American Declaration.  It limits the right of asylum to persons "being pursued for political offenses or related common crimes,"  thus excluding broad classes of persons who leave their countries because of situations of violence and other forms of persecution.  Second, the American Convention also recognizes in article 22(8) a right of non-refoulement. This article contains the most forceful expression of the principle of non-refoulement in current international law.[31] It states that "[i]n 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."  A prohibition against the collective expulsion of aliens is contained in article 22(9).

          2.    Declaration of Cartagena

          Recognizing the need to strengthen regional protections and systems with regard to refugees, which became a burgeoning regional issue in the 1980s, the UNHCR organized the Cartagena Colloquium on the International Protection of Refugees in Central America, which resulted in the 1984 Declaration of Cartagena on Refugees ("Cartagena Declaration").[32]  The work of the Colloquium -- which was attended by representatives from the UNHCR and United Nations Development Program ("UNDP"); human rights experts from throughout Latin America; and representatives from the governments of Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and Venezuela -- represented a significant positive development in the realm of refugee rights within the Inter-American system. 

          One could view the Cartagena Declaration as filling a noticeable gap within the regional framework which existed at the time.  It provided a common framework to meet the demands of refugee situations in Central America, and made Governments sensitive to the need to work toward eliminating the causes of displacement.  Although non-binding in form, the Cartagena Declaration was quickly incorporated into the existing regional legal framework applicable to refugees, displaced persons, and repatriates through its use by states, regional organs, and the UNHCR. 

          The Cartagena Declaration stressed the dual needs for coordination among international and regional organs and for increased action within the state framework with language that builds upon the existing body of international refugee law, notably the 1951 Convention and the 1967 Protocol.  In particular, it recommended that countries of the region should establish internal mechanisms which would give real effect to the rights contained in the 1951 Convention and 1967 Protocol and establish internal remedies for the protection of refugees.[33] 

          On a regional level, the Cartagena Declaration expanded the definition of refugee, as defined by the 1951 Convention and the 1967 Protocol, to include "persons who have fled from their countries because their life, safety, or freedom has been threatened by widespread violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances that have seriously disturbed public order."[34]  Thus in one broad sweep, the Cartagena Declaration lays the ground for refugee status for thousands of Latin Americans who had left their countries of origin because of situations of internal violence and repression but who did not qualify as "Convention refugees" (in reference to the 1951 Convention) eligible for international protections. 

          The Cartagena Declaration also made four significant additions to the legal discourse concerning refugees.  First, it called on states to recognize the right of non-return as a peremptory norm of international law.  Second, it stated that the principles regarding the treatment of refugees contained in the 1951 Convention, 1967 Protocol, and the American Convention, were minimum standards to be built upon by states.  Third, it called international attention to the problem of internally displaced persons, thus recognizing this problem as one appropriate for international concern. Fourth, and perhaps most important, the Cartagena Declaration situated the refugee discourse within the larger framework of achieving peace in Central America and promoting continued respect for human rights.

          The connection drawn between resolution of the refugee problem and the achievement of peace in Central America was a theme echoed and developed in the three major peace accords following the Cartagena Declaration -- the 1986 Contadora "Act for Peace and Cooperation in Central America," the 1987 Esquipulas II Agreement, and the 1989 Tela Agreement.  Commitments made during those peace agreements paved the way for a specific plan of action developed at the 1989 International Conference on Central American Refugees (CIREFCA).

          F.    CIREFCA

          In May of 1989, the Secretary General of the United Nations, at the request of the Central American governments and Mexico, convened the International Conference on Central American Refugees (CIREFCA) in Guatemala City, Guatemala.  Participating in CIREFCA were numerous donor countries, intergovernmental organizations ("IGOs"), non-governmental organizations ("NGOs"), and United Nations agencies.  The aim of the Conference was to develop a blueprint for addressing the problem of uprooted populations who were victims of conflicts that occurred in Central America during the 1980s. 

          In terms of scope and coordination among various state, regional, and international agencies, CIREFCA signified an unprecedented effort in addressing the problem of displacement. It resulted not only in specific programs to assist uprooted populations,[35] but also in a codification and clarification of the various international and regional legal instruments applicable to refugees, returnees, and displaced persons.[36]

          In international terms, CIREFCA was important because it provided a bold new model that, if successful, could be replicated in other parts of the world.  For example, the structural components of CIREFCA included the formation of national coordinating committees for the implementation of domestic projects; tripartite bodies comprised of representatives from the asylum country, country of origin, and the UNHCR to facilitate voluntary repatriation; and a joint support unit created by the United Nations Development Project ("UNDP") and the United Nations High Commissioner for Refugees to ensure follow-up, to evaluate projects, and to provide technical support. 

          The CIREFCA "Plan of Action" includes several innovations designed to address the needs of repatriates.  For example, CIREFCA's Quick Impact Projects ("QIPs") are aimed at quickly responding to immediate needs of repatriates by providing funding for small-scale projects such as the building of a health clinic or brick factory.  For longer term support, CIREFCA has implemented PRODERE, or the Development Program for Displaced Persons, Refugees, and Returnees in Central America, which is a long-term development program jointly administered by UNDP, UNHCR, the International Labor Organization (ILO), and the Pan American Health Organization/World Health Organization (PAHO/WHO).

          CIREFCA's "Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees, and Displaced Persons in Latin America" ("Principles and Criteria") clarifies and strengthens international principles governing the treatment of uprooted populations by applying international law to the specific situation in Latin America.  In particular, the "Principles and Criteria" document further codifies the concept of "refugee" by discussing categories of persons who may qualify but are not traditionally recognized as Convention refugees.  These include the following:

          1.    Evaders and deserters from compulsory military service who can show "that the performance of military service would require them to participate in activities contrary to their genuine political, religious or moral convictions or that their refusal is based on valid reasons of conscience or if the type of military action which they do not wish to perform is condemned by the international community as contrary to the basic rules of humanitarian conduct";

          2.    Economic migrants who face conditions "of such severity as to amount to persecution" and/or who face economic measures directed against them "for political, racial, or religious reasons";

          3.    Externally displaced persons who have been forced to leave their country "for reasons . . . , among which . . . are the non-immediate consequences of conflicts and widespread violence"; and

          4.    Persons who meet the criteria for treatment as refugees but have not formally been granted refugee status.[38]

          CIREFCA also represents an important development in strengthening the international mandate on internally displaced persons.  For the first time in regional legal discourse, a definition of "displaced person" is provided.  The CIREFCA "Principles and Criteria" document states:

          Although there is no generally accepted definition, displaced persons have been obliged to abandon their homes or habitual economic activities because their lives, security or liberty have been threatened by generalized violence or prevailing conflict but who have not left their country.  Their need for protection and assistance is at times as great as, if not greater than, that of refugees who have left the country. (emphasis supplied).[39]

          In addition to framing the phenomenon of internally displaced persons within the regional refugee context,  the document also highlights the applicability of international human rights and humanitarian law to displaced persons.  For example, in situations of non-international armed conflict, displaced persons, benefit from the provisions of common article 3 of the Geneva Conventions, previously described in this study.[40]

          III.    THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

          The Commission has addressed and continues to address the human rights of refugees, displaced persons, and repatriates throughout the Americas.  Its mandate to consider complaints of human rights guaranteed by the American Declaration and/or the American Convention, to facilitate the resolution of human rights disputes between individuals and states, and to promote respect for human rights throughout the Americas, makes it an important organ in protecting the human rights of these very vulnerable groups.  Through the issuance of country reports, press communiqués, and declarations and through on-site visits which include observations in refugee camps, resettlements, and repatriated sites, the Commission has been successful in exerting constant pressure on OAS member states to respect the human rights of refugees, displaced persons, and repatriates.  The Commission has also played a key role in monitoring the status of repatriates and drawing attention to the plight of internally displaced persons, thus complementing the work of international agencies such as the UNHCR.   

          In the past year, the Commission conducted on-site visits to Peru (from May 17-21, 1993), Haiti (from August 23-27, 1993), and Guatemala (from September 6-10, 1993), during which it received testimony from NGOs and individuals regarding, among other issues, the contributing effect of human rights violations on internal displacement.  In Haiti, the Commission received numerous human rights complaints supporting the determination that military repression has created a climate of fear and insecurity prompting large scale internal migrations.  It stated the following in a press communiqué No. 16/93 issued at the end of its visit:

          The situation of insecurity which is pervasive in the country has generated an additional human rights problem, namely internal displacement.  Citizens who have suffered physical abuse at the hands of the police or paramilitary forces fear to return to their homes.  "Mawons" (in Creole, those in hiding), are said to number as many as 300,000.

          In Guatemala, the Commission learned that since the beginning of 1993, approximately 10,000 refugees have repatriated, either on their own or with the assistance of several local and international institutions.  The Commission also visited provisional resettlement sites in the "Poligono 14" region to assess the human rights situation of returnees.  The Commission reported in its Press Communiqué No. 18/93 that some returnees had been subject to intimidation in the areas where they had resettled.

          In 1993, the Commission also called attention to the plight of refugees, displaced persons, and repatriates through special country reports on the situation of human rights in Peru,[41] Guatemala,[42] and Haiti.[43]  In the report on Guatemala, the Commission attested to the massive internal displacement caused by military repression, describing how human rights violations are directed against the indigenous population and how some of these groups have formed communities in popular resistance ("CPRs") which continue to be persecuted by government-backed military forces.  The Commission also undertook a detailed analysis of the situation of refugees and displaced persons categorizing, the different types of affected population, reviewed agreements reached between the Guatemalan government and the Permanent Commissions of Representatives of Guatemalan Refugees in Mexico ("CCPP"), and made the following recommendations regarding repatriation to the government of Guatemala:

          1.    That the government provide all citizenship documents to repatriates;

         2.    That the government facilitate the registration and certification as nationals of children born to refugees;

          3.    That the government fulfill its promise to postpone military service of repatriates for three years; and

          4.    That state agents respect the climate of detente among the parties involved and refrain from taking actions which would injure the repatriates' physical, psychological, and moral integrity, or which would discriminate against the repatriates.[44]

           In the 1993 report on Haiti, the Commission similarly devoted particular attention to the situation of refugees in a special chapter on the topic.[45]   The chapter reviewed the status of refugees since the coup d'etat of September 29, 1991, stating that one of the causes of the exodus is the violent crackdown against groups that support President Aristide.  It provided a detailed account of the United States' procedure for handling the Haitian refugees, in particular the practice of intercepting boats on the high seas.  In further response to the Haitian refugee crisis, the Commission issued a declaration calling upon the governments of the hemisphere to take emergency measures necessary to protect refugees and repatriates, pursuant to obligations contained in the American Declaration, the American Convention, the 1951 Convention, and the principles and rules of humanitarian law. The Commission also requested the United States government to review its practice of intercepting Haitians on the high seas as well as to ensure that Haitians already in the U.S. not be returned to Haiti without a determination as to whether they qualify for refugee status, under the 1967 Protocol, or as asylees, under the American Declaration.[46]

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