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COMMISSION ON HUMAN RIGHTS Sub-Commission on Prevention
of Discrimination and
Protection of Minorities Forty-first session
Agenda item 16
Written Statement by Human Rights Advocates
[17 August 1989]
FORCIBLE REPATRIATION OR RETURN
(Geneva Contact: Janelle M. Diller, telephone 731-3360)
1. This year, the Commission on Human Rights expressed in resolution 1989/39 its desire "to promote further standard setting in (the) field" of the right of everyone to leave any country, including his own, and to return to his country (E/CN.4/1989/86). In addition, in resolution 1989/63, the Commission recognized the role of human rights violations in causing mass exoduses of refugees and displaced persons, and also the causes of such exoduses" (E/CN.4/1989/86). In cooperation with the Indochina Resource Action Center in Washington, D.C., Human Rights Advocates submits the following information and urges the Sub-Commission to examine and take appropriate action on the forcible repatriation of persons who have left their own country and would be subjected to substantial risk of human rights violations upon return.
2. One basis for concern arises where procedures for determination of refugee status are not carried out in good faith, thereby greatly increasing the likelihood that genuine refugees will be refouled in violation of the recognized principle of non-refoulement, In addition, where forcible repatriation would subject an individual to substantial risk of human rights abuse, the repatriating country breaches it own international obligations. For example, under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, "no State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." (Article 3, para. 1.) In the present context, similar obligations arise under customary law if the right that is threatened is recognized under customary law, or under treaty law if the right is recognized by a treaty to which the repatriating country is a party. In VMRB v. Canada, the Human Rights Committee held that an asylum seeker who feared abuse of his rights to life and liberty (articles 6 and 9 of the ICCPR, respectively) if he were deported to his native El Salvador did not have his rights violated by deportation in part because Canada agreed to deport him to a country other than El Salvador. Similarly, in Soering v. United Kingdom, the European Court of Human Rights recently prohibited extradition where the subject would likely face inhuman and degrading treatment by the "death row phenomenon" in violation of article 3 of the European Convention on Human Rights.
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