ORGANIZATION OF AMERICAN STATES
INTER-AMERICAN INSTITUTE ON HUMAN RIGHTS (IIHR)
OPEN SOCIETY INSTITUTE (OSI)
FORCED MIGRATION PROJECTS
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Conference on Sudden Forced Migration Emergencies in the Americas
Washington, D.C., September 30/October 1, 1997
A PROPOSAL FOR
ACTION ON SUDDEN FORCED MIGRATIONS
Juan E. M�ndez 1
I. Introduction and
Definitions
By "sudden
forced migration" we refer to the complex social phenomenon that occurs when large
numbers of persons cross the borders of their own countries, ostensibly fleeing a
situation that affects their sense of physical security and that of their families, as
well as their livelihood. In our definition, even when some early warning signals may be
present, those migration flows take place in sudden bursts that cause major disruptions in
the political, economic and legal arrangements of the country or countries to which such
persons flee. Those disruptions can cause problems in the foreign relations of the sending
and receiving countries, as well as between them and neighboring nations that are called
upon to share in the unexpected burden. For the purposes of our definition, we assume that
these persons decide to uproot themselves in response to a variety – and often a
combination – of factors. They cannot automatically be considered refugees under
accepted international definitions, nor should they be deemed as prima facie
"economic migrants" just because they are, by definition, also destitute.
The definition attempted in
the preceding paragraph is broader than the internationally accepted definition of
"refugee." 2 Given the fact that a
man-made situation of risk precedes the flight, it is to be expected that a number of the
persons escaping will meet the Convention definition, even under its narrowest possible
construction. At the same time, in our definition it is accepted that many persons may not
meet it regardless of the circumstances under which they present a petition to that
effect. Clear-cut refugees are adequately covered by international law and practice, but
complex situations will in all cases tend to confuse matters and erode existing
protections. On the other hand, sudden forced migrations are undoubtedly related to the
larger and broader phenomenon of migration between the countries of our continent. Without
minimizing the legitimate interest that general migration problems generate for our
countries and societies, and recognizing the undeniable links between the two phenomena,
our study concentrates specifically on the subset of problems created by sudden forced
migration as defined above.
There are even closer
relationships to two other situations: that of persons seeking asylum abroad, and
internally displaced persons (IDPs). Asylum-seekers are in principle protected by
international law governing refugee status. Our definition recognizes that many persons
involved in sudden forced migration will petition for asylum if given the chance to do so
in a foreign country. We can discuss under what circumstances they have a right to make
such a plea; more importantly, however, we intend to discuss the responses that the sudden
nature of the flow generally cause in the receiving country, and their connection to its
international obligations. With respect to internally displaced persons, we include them
in our study (though not in the definition) because of the very real possibility that
forced movement of people within borders can be a prelude to sudden forced
migration across borders. Since we will argue for the need to prevent or to prepare
for humane and practical responses, internal displacement in this sense must necessarily
enter the picture.
II. The Context:
Migration across
borders is fast becoming a major issue in international relations, as economic pressures
produce an ever-increasing rate of movement from poor countries to developed ones. In that
climate, legitimate interests in preserving control over borders are clouded by xenophobic
and ill-conceived reactions in the general public, often exploited by politicians that are
quick to blame the newcomers for all the ills in society. In the unenlightened policy
debate about immigration controls, receiving countries tend to forget that the over-all
migration phenomenon includes persons who are not only looking to improve the lot of their
families, but actually escaping serious threats against their lives. With regard to this
subset of migrants, policy prescriptions must at all times respect the international
obligations of the state with regards to refugee law. Unfortunately, the trend in most
receiving countries is to ignore such obligations, or to reinterpret them in restrictive
and arguably impermissible ways.
Mass migration in flight
from persecution continues to grow, and the international community responds to it very
inadequately if at all. Hundreds of thousands of persons move across borders in Africa,
sometimes in a matter of days. A similar mass exodus can even take place within Europe
itself, as in the recent Albanian case. The sudden presence of newly arrived persons
creates humanitarian emergencies and strains the already limited capacity of the reluctant
host country to receive them. In that context, poor receiving countries tend to imitate
rich receiving countries and reinterpret international standards to restrict the
definition of refugees, their freedom of movement, and their rights to food assistance and
to protection. In fact, these are increasingly not seen as rights but as gracious
concessions that can be withdrawn at any time for reasons of a vaguely defined
"national interest." Though the scope and dramatic aspects of the African and
Southern European examples add a different dimension to the problem, the issue is not
restricted to those parts of the world. In fact, our own region has experienced similar
problems not too long ago, and there is no guarantee that it might not happen again.
Many migrants, including
some in our region, are fleeing situations that pose grave risks to their lives. The
extent to which those risks entail a situation of "persecution" as envisioned in
international refugee law is a matter of serious debate. Leaving aside for the moment what
the most legally sound answer to that question may be, there is no denying that the
situations from which forced migrants escape are often not the classic forms of political
persecution. Indeed, state actors may or may not be the main culprits in endangering the
lives of such persons. Ethnic rivalries, conflicts over land, private armies, drug
traffickers and other forms of organized crime often result in lawless violence that
forces large numbers of persons to abandon their homes. Even when state actors are clearly
the perpetrators, their motives may not necessarily be political in a classic sense:
members of the security forces are often employed in violence to solve rural conflicts
over land or over agricultural labor, or to wage "wars against crime" that are
really directed indiscriminately against slum dwellers in large cities.
Although some of the
internecine wars of the 1980s are fortunately over, the phenomenon of armed insurgency has
not disappeared in our continent. And where the problem persists (as well as where it has
resurfaced) both sides tend to violate the laws of war and to affect the civilian
population and the innocent. Large numbers of persons escape conditions of war, and the
issue of whether they meet the definition of refugee when they have crossed an
international border is a matter of very lively debate.
Even though most of our
continent is experiencing an unusual moment of constitutional rule, it is no secret that
our fledgling democracies are increasingly overwhelmed by the various forms of violence we
described and can hardly pretend to be able to protect their citizens from it. If a
refugee is someone who cannot or prefers not to avail him or herself of the protection of
his own country, then the problem of weakened states and their inability to guarantee
citizens’ security deserves at least some attention when deciding on the proper scope
of the refugee definition.
All of these conditions
force large groups of persons to move. When they do so within their own countries, they
are not technically refugees, but the matter is nonetheless of serious concern to the
international community, both as a humanitarian emergency and as the prelude to the
generation of a refugee crisis. 3 When they do
cross borders, the international community as such is responsible, at least for upholding
the basic principles of refugee law, such as non-refoulement, non-discrimination
and a fair opportunity to state a claim in order to qualify for protection as a refugee or
asylee. Instead, each new forced migration crisis moves us to further erosion of these
principles. Persons are actually sent back to their countries without being screened under
the definition, making it highly likely that genuine refugees are among them. Interdiction
on the high seas and other measures are attempted in an effort to prevent these persons
from reaching countries of first asylum, under the theory that persons caught outside the
limits of a country are not entitled to the protection afforded to those who do make it to
that country. 4 Others are relegated to camps,
where they are indeed protected from refoulement. But they are deliberately held
there with no freedom of movement and often in very poor conditions, and no effort is made
to screen them to decide who among them is a genuine refugee. In fact, camps are used as a
disincentive to others who may be planning to leave their country, and as a means of
forcing those held in them to give up and return "voluntarily."
Some countries have resorted
to designing certain legal though precarious immigration arrangements short of recognizing
such persons as refugees or asylum seekers. This "temporary protective status"
(TPS) may well resolve huge organizational and practical problems while affording a
humanitarian and dignified solution to the emergency, especially if it is combined with a
work permit. But TPS holders are denied the chance to obtain a more stable status, and
they live under the threat of mass deportation as soon as the conditions they have fled
are deemed to be over. Since the requirements for TPS tend to be more lenient than the
refugee definition, the system allows for the protection of a larger number of people than
internationally recognized principles of international refugee law. But, although such
protection is broader, it is certainly more superficial and precarious. For those who may
be able to prove they are genuine refugees if given a chance to state a claim, TPS short
changes their rights.
Finally, successive crises
(and sometimes just perceived crises) result in proposals for legislative change
the conformity of which to international obligations is at least suspect. Even if those
amendments to legislation do not pass or are eventually struck down by the courts, the
mood in public opinion that is created favors attitudes of hostility to aliens in
administrative agencies charged with immigration control. Without ostensible doctrinal or
legal changes, the discretion that agents have to analyze evidence and to apply standards
is exercised against the migrants, and the burden of proof that they must meet to obtain
legal status automatically becomes heavier.
As this rough summary
indicates, the international community is not only refusing to accept collective
responsibility for humanitarian emergencies brought about by sudden forced migration; it
is sometimes more concerned with apportioning blame for the creation of the conditions
that induce people to move than with finding humane solutions. There is also a need to
explore ways to prevent sudden forced migration by attacking the root causes of the
fears that propel people to leave their homes. But as of now the world has not found an
appropriate way to deal with the early warning signals -- that often are quite visible
– in a constructive and effective way. 5
The successive crises of
sudden forced migration have resulted in some creative thinking and valuable
organizational lessons; but by and large they have also had the effect of contributing to
the erosion of fundamental principles of refugee law, to deterioration of civil liberties
in host countries, to strains in international relations and difficulties in achieving
cooperation between nations. Since it is to be expected that new waves of sudden forced
migration will happen in our continent, we submit that it is time for our governments,
civil societies and thinkers and researchers to engage in systematic analysis of past
experiences and in a learning process that can prepare all of us better for the next
contingency.
III. A Summary of Recent
Developments in the Area:
In 1984, in the midst
of the greatest refugee crisis ever affecting Central America, a meeting of ten government
representatives and fifteen independent experts issued the Declaration of Cartagena, which
reasserts the principles informing our best traditions of asylum and human rights. 6 In linking the problems of refugees, displaced
persons and repatriatees, the Declaration�s main contribution can be summarized in five
points: a) it filled the vacuum in offering a way to expand the definition of refugee in
the 1951 Convention; b) it promoted action within states in highlighting the need to pay
attention to the plight of internally displaced persons, even though this category was not
specifically developed at the time; c) it reinforced the importance of the principle of non-refoulement;
d) it stressed the need for states to continue developing minimum standards enshrined in
international protection instruments; and e) it set the issues of refugees, repatriatees
and displaced persons within the larger context of respect for human rights and
peace-building in the region. 7
Beginning in 1987, the
governments of Central America, with the assistance of other sister nations in the
hemisphere, begun a peace process that was to culminate in the Esquipulas II Accord. The
process itself became an opportunity to join together initiatives related to conflict
resolution, democracy, human rights and development, and in the course of the negotiations
the Central American governments pledged to give urgent attention to refugee flows and
displacement, to provide immediate protection and relief, and to promote repatriation and
productive reinsertion in their societies. An important by-product of this process was the
1989 International Conference on Central American Refugees, Repatriatees and Displaced
Persons (CIREFCA in its Spanish acronym). Its main result was to promote the search for
new legal, political and economic solutions and of mechanisms of negotiation in Central
America – bilateral or multilateral – with the participation of
inter-governmental agencies like the UNHCR and the UN Development Program, as well as with
the support of developed nations.
In 1995 there was a
colloquium to commemorate the tenth anniversary of the Cartagena Declaration, which in
turn produced the Declaration of San Jos�. 8 This
statement emphasized the complementary nature of and the convergence between the three
large systems of international protection of the human person (international human rights
law, refugee law and international humanitarian law), and established that human rights
violations are among the primary causes of displacement, in view of which human rights
observance is an integral element to any durable solution. In addition, it postulated that
human rights protection and strengthening of the democratic system are the best way to
prevent conflict, exodus and grave humanitarian crises. At the same time, it acknowledged
the growing importance of the phenomenon of internal displacement and the incidence of
forced migration originated in causes not specifically contemplated in Cartagena.
The San Jos� Declaration is
noteworthy in that it emphasizes the relationship between forced migration and the special
plight of women, children and indigenous peoples. 9
The Declaration urged new conceptions on the rights of refugees, and specifically the
adoption of objective criteria related to protection needs as opposed to subjective
categories of persons according to their reasons to fear persecution, a posture that would
obviously result in covering a larger number of victims. 10
As this summary shows, each
of these declarations responded to the changing priorities of its time. Our region has
shown remarkable ability to adapt to rapidly evolving situations and to new challenges.
Although these statements are not binding as a matter of international law, we believe
them to be authoritative as opinio juris and as declarative of the intent and
desires of our region and, as such, worthy of consideration in developing new rules of
international behavior in this area. In fact, some countries have incorporated the
Cartagena Declaration expressly into their domestic legislation (Bolivia, Ecuador,
Mexico), while others have applied it administratively in the presence of massive inflows
of refugees (Costa Rica and Honduras between 1989 and 1991). Argentina has applied it
regularly in administrative decisions and is contemplating its incorporation through a
bill to amend its current refugee law. In 1991, Belize promulgated new legislation on
refugees incorporating the definition fashioned by the Organization of African Unity,
which is a source of the definition proposed in Cartagena.
11 More recently, the Colombian Congress passed a law on IDPs that adopted a
definition based on the Cartagena Declaration.
The Inter-American system of
protection has had occasion to turn its attention to this problem as well. The
Inter-American Commission of Human Rights (IACHR), a charter organ of the Organization of
American States and a treaty body of the American Convention on Human Rights, has
repeatedly visited the issue and has urged the General Assembly (GA) of the OAS to treat
it. Since 1985, the GA has adopted a resolution every year stressing the importance of the
subject and its own concern about it. At the most recent GA in Lima (June 1997), a
resolution urged to "contemplate the need to harmonize as much as possible the
standards, criteria and procedures in refugee matters, with the purpose of affording
adequate treatment to persons in such condition." In its reports of 1993 and 1994 on
Haiti, the IACHR specifically addressed the plight of refugees and dedicated a chapter to
them.
The Declaration of San Jose
has been hailed by the Organization of American States, as its General Assembly
"(took) note of the principles embodied in the conclusions and recommendations of the
1994 San Jose Declaration." 12 In spite of
this endorsement, and of the examples cited above, it is apparent that there has been at
best weak progress in incorporating the principles of these declarations into domestic
law, which has in fact been the strategy of most supporters of the ideas advanced in these
texts. Some of our colleagues have questioned the effectiveness of that approach and
suggested a reevaluation. 13 It may be time to
think of the need to promote a multilateral treaty adopting the more modern principles of
protection in this area.
The hemisphere, as shown,
has paid significant attention to this matter, reflecting the deep impact that sudden
forced migrations have had on our democratic institutions, on the lives and well-being of
thousands of our compatriots, and on the peaceful and harmonious relations between our
countries. There have been attempts at global and enduring solutions like the Development
Program for Displaced, Refugees and Repatriatees of Central America (PRODERE in its
Spanish acronym) that are encouraging steps in the direction of international cooperation
and must be applauded for their effort to address root causes of forced migration and to
offer solutions to be applied where the affected populations are physically present. But
these steps in the right direction should not lead us into a false sense of complacency,
just like the wave of democracy we are experiencing should not lead us to think that the
problem of sudden forced migration will take care of itself.
Factors that have caused
sudden forced migration in the recent past are still there, namely the incidence of grave
human rights violations and political and quasi-political violence. These may no longer be
expressions of state policy, as they certainly were in the past, but our weak and
insufficient democracies are incapable of controlling the violence or of protecting the
weakest sectors of our societies. Just as we were unprepared to absorb the impact of
sudden flights across borders of Haitians, Cubans, Guatemalans, Salvadorans, Nicaraguans
and Colombians, we may well be caught unprepared when the next sudden flow occurs. 14
For that reason, it is
imperative to assimilate the experiences of the recent past, to engage in comparative
analysis of solutions and of their applicability in different settings, to train public
officials on the law and on organizational issues associated with administering complex
and time-sensitive programs to receive and process large numbers of recent migrants, to
review international standards and mechanisms of implementation as to their viability and
relevance to today’s problems, to generate proposals for the progressive development
of those standards and mechanisms, to foster opportunities where public officials can
share their concerns and experiences with their counterparts in other countries, and to
concentrate and facilitate rigorous research and scientific thought about these problems
amongst independent experts and academics of our region.
IV. Conceptual Problems
arising from Current Challenges:
Sudden forced
migrations involve the rights of persons who are admittedly outside their country of
nationality and without status, and the interests of the state on whose territory they
arrive in maintaining control over its borders and population controls, and over its
social services. The persons who migrate are not automatically covered by refugee law, at
least not until a determination is made that they meet the relevant definition. But they
are also not automatically covered only by the law concerning aliens, since the
circumstances and reasons for their sudden presence in a foreign country are not
irrelevant. 15 From that perspective, we should
either strive to develop standards and mechanisms applicable to this special set of
persons and circumstances, or we need to insist on the use of appropriate mechanisms to
sort out the level of protection to which each individual in the group may be entitled.
Definitional problems are at
the heart of the issue, because there is no consensus on whether Article 1 of the
Convention of 1951 should be construed narrowly or expansively. In other words, does the
formula in Art. 1 restrict the definition to a person affected by "classic"
forms of political persecution, or can it apply as well to a person whose well-founded
fear of persecution does not fit neatly into the categories of "race, religion,
nationality, membership in a particular social group or political opinion?" Arguably,
an interpretation in good faith and in accordance with the object and purpose of the
treaty should be broad enough to cover persons who leave their countries because of combat
operations that target civilians, for example, or who could be singled out to be
persecuted because they live in an area generally considered "enemy territory"
by groups exercising a monopoly of violence.
Similarly, does a person
need to show that he or she fears persecution by the State to qualify as a refugee,
or can he or she invoke the protection to be free from persecution from a non-governmental
entity such as a guerrilla faction, or private armies, or drug traffic enforcers or
paramilitary groups? If the answer rests on the availability of protection from the State, 16 then the degree to which States can actually
protect their citizens will depend on hard questions of fact, which in turn are never
completely settled or static.
The
principle of non-refoulement is the most widely recognized principle in this field.
There is broad consensus that, beyond its inclusion in Art. 33 of the 1951 Convention, it
has attained status of customary international law, so that it is effectively binding even
on countries that are not parties to the Convention. 17
However, in situations of sudden forced migration, governments tend to argue that the
principle attaches only to those who have been recognized as refugees, and they then
attempt to avoid making a determination while finding ways to send the migrants back or
divert them to some other destination. In Europe, receiving countries are resorting to the
use of the concept of "safe country," whether or not that country is one of
first asylum, to refuse admission of refugees while returning them to a situation where
they are supposedly not in danger. Needless to say, the next country does the same until,
at some point, there is a very actual risk of return to a situation of persecution. Even
with its broad doctrinal acceptance, the principle of non-refoulement is suffering
a steady and deep erosion.
Questions of definition
should never be made a priori or by broad categories. If those categories are based
on race, religion or country of origin, they violate Art. 3 of the 1951 Convention. Sudden
forced migration, however, moves receiving countries to make special arrangements and
provisions to treat the problem they create, and those measures will not be generally
applicable to other asylum seekers or prospective refugees. To the extent that special
measures are reasonable responses to different circumstances they may well be compatible,
in principle, with the Convention’s prohibition on discrimination. It must be noted,
on the other hand, that the rationale for distinctions in treatment will inevitably
include factors like race, religion and particularly country of origin of the prospective
refugees. The risk that they will create invidious discrimination in treatment based on
proscribed categories is therefore great. For that reason, even though special measures
may not be automatically illegal under international law, they will always require strict
scrutiny under the non-discrimination principle. The burden should be on the state to show
that special measures are warranted by the situation; that they are reasonable responses
to special circumstances; and that they are not discriminatory on the basis of prohibited
categories.
A third cardinal principle
of refugee law is that prospective refugees should be afforded a fair opportunity to state
a claim for refugee status. This principle is not specifically stated in the Convention,
but we submit it is fundamental to the way in which a decision is made that an alien is
entitled to the protection of the Convention. If a state is free to decide whether or not
to screen entrants and sort out who among them is a genuine refugee, then they will also
be free to return them, incurring the risk that at least some of those returned will be
persecuted, in violation of the principle of non-refoulement. On the other hand, if
large numbers of migrants are not returned but also not screened, their indefinite
detention in camps will violate their right to be free from prolonged arbitrary arrest. At
the same time, screening should not be conceived as a pro forma exercise or as
allowing collective and uniform decisions. Though the question of how much process is due
in these matters is open to debate, we believe that an opportunity to petition under
humane and adequate physical conditions, an individualized hearing and the benefit of some
assistance or counsel on the subject�s rights is in order. Unfortunately, in most of our
countries there has been little attention paid to creating procedures and mechanisms to
make these adjudicatory decisions meet basic standards of fairness.
In addition to the three
principles outlined above, sudden forced migrations raise exceedingly difficult problems
of emergency relief and burden sharing among countries, not to mention the need to
establish on-going contacts between states so that effective negotiations can take place
at appropriate times. None of these things can be effectively guaranteed without some
preparation or without a practical way to harness the now scattered intellectual resources
and experiences so that lessons can be learned and effectively transmitted.
V. Advanced Planning,
Specialized Research and Training on Prevention and
Treatment of Sudden Forced Migration in
the Americas
The preceding
paragraphs make, we think, a strong case for the need for preparedness. If our governments
and societies are to confront the challenges of new waves of sudden forced migration
without harm to their own democratic institutions, or to the sense of solidarity of their
communities, or to their relations with friendly neighbors, they need to be ready for the
dislocation and disruption that those new waves will almost certainly bring. By
preparedness we mean essentially an ability to learn the lessons of our past experiences
in a systematic, rigorous way, and to translate those lessons into practical applications
by those in a position to use them.
The first need is, of
course, to collect and organize all the relevant information about those experiences and
others, as well as all the bibliographic material that they have produced, so that they
can be studied, dissected and analyzed under the most demanding academic standards.
Secondly, we need to promote research and new legal, social, economic and political
thought about both the phenomena of forced migration and of the public policy responses
that they elicit. We need to attract the best minds, the most rigorous thinkers and the
most skilled researchers to our topic, so that in the future we can avoid the
improvisation and quick fixes that have characterized the reactions by governments to the
sudden presence of unexpected migrants. But it is crucial that documentation and new
research be put to the service of applied science, so that it can be readily available to
those who must make policy decisions under the pressure of circumstances, as well as to
those who have to implement those policies on the ground. For that reason, our effort must
be directed to use research findings in training government officials, agents of
inter-governmental organizations, members of relief organizations who are deployed to
serve the needs of migrants, and non-governmental organizations that make sudden forced
migration a major part of their mission. At the same time, the capacity to train has to be
made flexible so as to adapt to different backgrounds and needs, and incorporate
systematic use of field and practical training.
The documentation thus
gathered and the training capabilities we envision must be made available to government
officials and others so that they can put it to use in conducting careful and
knowledgeable advanced planning of the response that different institutions can offer to
future incidents of sudden forced migration. Past experiences should be studied carefully
to measure the impact of certain policy responses and to learn from the successes and the
failures of solutions that were applied at the time. In this fashion, governments can be
prepared to confront future crises generated by sudden forced migration by knowing what
resources to deploy, what legitimate adaptations they should make to their regulatory and
legal frameworks, whom to contact on an emergency basis to establish coordination and
constructive cooperation with other nations, and how to read the early warning signals of
an imminent wave of sudden forced migration. The planning capability that must be
developed should proceed from careful examination of the data, including recent
experiments and their results. Planning based on experience should also allow for
effective measures of prevention through timely action to stop or redress human rights
violations and acts of violence that can be expected to cause flight.
We suggest, therefore, that
governments, centers of higher learning and funding sources join together in conceiving
and organizing a regional planning institute on forced migration in the Americas that will
fulfill the features referred to in the previous paragraphs. The idea should be to have a
place where all ideas and trends can be tested against major legal requirements as well as
ethical principles, but also incorporating serious and rational political analysis and
rigorous evaluation of economic and social impact of the migration phenomena. It should
not be a center of advocacy for one set of solutions, nor a politically-biased producer of
policy alternatives reflecting one or another ideological tendency. It should be governed
under the most demanding standards of academic rigor and freedom of thought, and expose
all opinions and concepts to the scrutiny of rational analysis and fact-based research.
Under those conditions, it should welcome all proposals and encourage all avenues of
research on our topic, under the sole condition of their practicality and applicability to
conceivable scenarios.
The institute’s
research and documentation, however, should also be geared clearly towards practical
application and sharing of knowledge and experience, and especially to develop appropriate
standards of prevention and early warning. An important part of its resources should be
dedicated to education and training, in a manner that contemplates both opportunities for
post-graduate learning and research and meets the needs of short-term, immediate training
of state agents and others who must apply newly acquired skills in jobs that cannot wait.
An institute like that would serve an important function in reassuring authorities that
the knowledge is there and that educational and advisory backup is available when
institutions are forced to attend to problems created by unforeseen developments. It
should be organized in a manner that allows for quick reaction and adaptation to rapidly
changing circumstances, but also for readiness to confront predictable scenarios with the
least possible measure of improvisation. It should also serve to encourage the creation of
organizations of civil society that can provide advocacy, training, legal services and
relief operations under sound principles and with effective results.
In order to start with a
high degree of legitimacy, some conditions should be present at the inception of an
institute like the one we envision:
- Governments in the Americas should lend their support to
the idea. It is not so much necessary that the institute should be an official joint
venture of several states – though that would obviously help – but that those
states see the institute from the beginning as a resource that they can use and that they
therefore support;
- Inter-governmental organizations should also lend their
support to the idea from the start. In particular, the Organization of American States and
the United Nations High Commissioner for Refugees should participate in the initial
discussions to conceive the institute’s structure, its mission, its agenda and its
priorities, and should help in identifying other organizations that must also be consulted
early on;
- The most highly respected specialists in migration should
be asked to share in those early ideas and to bring in those who can develop a blueprint
for effective organization of documentation, research, training and planning capabilities.
With regards to documentation, the institute should not only
strive to compile the most complete collection of bibliographic materials, but also to
make it available to government officials, scholars, researchers and planners in the
region. In addition, it should avail itself of the possibility of generating new
documentation, statistical and factual information from the ground, in order to remain
always up-to-date and in tune with rapidly changing circumstances. In this sense, the
institute’s documentation base should be conceived as serving the needs of early
warning and prevention and forward-looking preparedness, and not only as library material
to be consulted when the crisis is already in full bloom.
The institute should be able
to host planners and researchers on both a long- and a short-term basis, and should strive
to maintain an inter-disciplinary team of highly skilled academicians, planners and
administrators who are capable of producing the region’s own creative thinking on
these problems and their policy challenges. Some examples of areas of research that
require immediate attention are:
- Up-to-date information and analysis of domestic legislation
and mechanisms applicable to migration, and their conformity with international standards;
on-going evaluation of international norms and cooperation in standard-setting in
international law, both in regards to substantive norms and their relevance to current
problems and in regards to effective mechanisms of compliance;
- Analysis of impact of migration in the economies of
receiving countries and in the costs of hosting new immigrants, including serious analysis
of the costs of burden-sharing;
- Impact of sudden forced migration on the delivery of social
services;
- Rigorous assessment of push and pull factors, including
both economic pressures and political and social upheavals, gathering serious fact-based
information and analysis of the ability of a country’s institutions to afford
adequate protections to life and physical integrity of their citizens;
- Organizational evaluation of schemes set up to receive and
process sudden forced migration and to provide essential services to those involved;
- Development of indicators and yardsticks to evaluate the
effectiveness of responses to specific instances of sudden forced migration;
- Development of standards on early warning signals and on
appropriate actions to prevent sudden forced migration with due respect for humanitarian
concerns and for the rights of the potential migrants.
These and other areas of research should not be conducted
exclusively by professional academics, because the "ivory tower" image should be
avoided. Instead, the institute should make its research facilities available to
practitioners in the field, particularly government officials, whose work can benefit from
a stint at intensive library and field research under conditions that allow for serious
and constructive confrontation of ideas and policy prescriptions with others with relevant
experience and background. In that sense, inter-disciplinary research teams should remain
flexible in order to accommodate the contributions of these temporary or visiting research
fellows.
Researchers should be asked
to make their intellectual products available not only for scholarly publication but also
for use in educational settings. The institute should organize its training capabilities
to be able to provide, on short notice, at least the following kinds of training services:
- Classroom training at the center’s headquarters in the
form of short inter-disciplinary courses on migration, its social and economic causes,
applicable domestic legislation and international law standards governing it. The audience
for these courses should be practitioners or prospective practitioners with relatively
little background in the field;
- Training for agents who in turn will have the
responsibility of training officials in their own or other countries. This specialized
line of education should concentrate as well in the production of adaptable pedagogic
materials;
- Applied courses designed to suit the special needs of
government agents required to implement immigration law and policies under complex
conditions. The contents and pedagogical methodology of these courses should be negotiated
with the governments and agencies requiring them;
- High level courses for decision-makers in government and
international institutions, including legislators, high officials of the executive branch
and magistrates, to acquaint them with trends in international and comparative law and
practice so that they can apply newly acquired knowledge to policy-making and adjudication
in the areas of their responsibility;
- Post-graduate courses of study for practitioners with
experience and scholars with extensive background in the field, conducted or supervised by
the region’s most highly recognized academics.
In addition to training, the institute should be organized
to host planning professionals both on a regular basis and in times of emergencies.
Planning capabilities should be conceived with at least the following features in mind:
- Ability to store and retrieve all relevant information from
past experiences;
- Advisory services in setting up emergency delivery of
relief;
- Organization to process large numbers of applications for
benefits in relatively short time and in an orderly fashion;
- Ability to screen applications for asylum with due regard
to minimum safeguards of fairness and non-discrimination;
- Ability to establish and maintain communication and
contacts among several countries in the region and to allocate burdens and
responsibilities fairly and cooperatively.
Finally, the institute should have a serious publications
program, with well-thought out distribution arrangements, so that the knowledge that is
thus generated can be adequately disseminated and its impact multiplied.
In addition to the features
outlined above, the institute should adopt some guiding principles to govern not only its
creation but its activities in the long run:
- Consistency: its mandate should be clear from the start and
should be the main factor in providing it with a sense of identity. The institute should
see itself as apolitical, academic, humanitarian, independent and impartial. Though its
main line of work is documentation, research, training and dissemination, it should not
necessarily eschew a role of quiet diplomacy in fostering horizontal cooperation and
promoting good faith negotiations between relevant actors in a sudden forced migration
crisis;
- Organizational discipline: the institute must give itself a
functional structure that will allow it to discharge the several different
responsibilities outlined above on an even and balanced basis. This will allow enough
flexibility to meet specific challenges while maintaining a long-term view of its mission
and not letting trends and emergencies shape its agenda;
- Operational philosophy: the institute should maintain a
balance between meeting the specific and urgent needs of its potential clients and its
overall long-term view of the forced migration phenomena and the requirements that such a
view imposes on planning, research and training capabilities.
VI. Conclusion
In the previous pages
we have attempted to argue for the need to develop capabilities in our governments,
societies and international organizations so that we can meet the next challenges of
sudden forced migration more constructively and more humanely than we have in the past,
and with less risk to the credibility of our democratic institutions and less harm to the
values enshrined in the international law that governs these movements of persons. For
lack of a better word, we use "preparedness" to signal the need to develop those
capabilities which in our mind are not now present.
We are convinced that the
key to preparing for those challenges is an approach that combines education and applied
science, specifically in advanced planning, not only because we think there is a lot to
learn and a lot of rich experiences to share, but also because education opens doors
instead of closing them, and persuades actors to act in principled and humane ways where
expediency might dictate otherwise. Education, in this sense, includes both the generation
of knowledge, its dissemination and its application in laboratory conditions. For that
reason, education must be seen as inseparable from the rigorous research and confrontation
of ideas that will create the content of the knowledge to be shared and will forever keep
it current; and similarly, it is inseparable from the possibilities of applying those
findings and skills in the real world and to foreseeable scenarios.
We have also made a concrete
proposal for an institute that can be home to those tasks and that would welcome all
persons and institutions with a desire to learn about forced migration and its
relationships to larger social, political and economic phenomena. The practical ideas for
such an institute’s organization are undoubtedly based on our own experience with the
subject matter of migration and refugee studies and more generally with the 17-year
experience of the Inter-American Institute on Human Rights, which is dedicated to the
promotion of human rights and democracy by way of education. Needless to say, the idea for
this regional planning institute must be enriched with the thoughts and impressions of
many others with specific experience in both migration and education across borders. That
is why we have chosen to suggest our modest proposal at this meeting: because we value
your opinions on this matter and are ready to discuss our own thoughts with you.
Thank you.
1
Executive Director, IIHR. The author acknowledges the invaluable assistance in research
from his colleagues at the IIHR: Roberto Cu�llar, Cristina Zeled�n, Nicol�s Boeglin and
Francisco Cox, as well as the helpful comments and suggestions from Arthur Helton and
Eliana Jacobs, of OSI.
2 Art. 1.A.2, Convention
Relating to the Status of Refugees, 1951.
3 Goldman, Robert K.,
"Internally Displaced Persons: Global and Regional Initiatives, Specific Protection
Needs and the Importance of an Inter-agency Framework," in UNHCR-IIHR, Diez a�os
de la Declaraci�n de Cartagena sobre Refugiados, Memoria de un coloquio
internacional, San Jos�, 1994, pp. 279-303.
4 US Supreme Court, Sale v.
Haitian Refugee Centers, 113 S.Ct.2549, 125 L.De. 2d. 128.
5 UN World Conference on Human
Rights, Statement by the UN High Commissioner for Refugees, Vienna, June 15, 1993
(mimeo). A recent trend in the European literature is to establish an international
responsibility in the sending country: Gowlland-Debas, V. "La responsabilit�
internationale de l�Etat d�origine pour des flux de r�fugi�s," in Societ�
Fran�aise pour le Droit International, Droit d�asile et des r�fugi�s, Paris,
Pedone, 1997, pp. 93-131; and Sturma P. and Czplinski, W., "La responsabilit� des
Etats pour les flux de r�fugi�s provoqu�s par eux," in 40 Annuaire Fran�ais de
Droit International, 1994, pp. 156-169.
6 UNHCR, Declaraci�n de
Cartagena. Coloquio sobre la Protecci�n Internacional de los Refugiados en Am�rica
Central, M�xico y Panam�: Problemas Jur�dicos y Humanitarios, Geneva, 1985.
7 Can�ado Trindade, A.A.,
"Derecho Internacional de los derechos humanos, derecho internacional de los
refugiados y derecho internacional humanitario," in UNHCR-IIHR-Government of Costa
Rica, Memoria Coloquio Internacional, Diez A�os despu�s de la Declaraci�n de
Cartagena sobre Refugiados, San Jos�, 1995.
8 "Declaraci�n de San
Jos� sobre Refugiados y Personas Desplazadas, in UNHCR et al, Memoria Coloquio…cit.
9 It is worth mentioning that
indigenous peoples are the most impoverished sectors in all countries in the world; even
in highly developed countries, pockets of poverty generally affect indigenous groups
disproportionately. For example, in Mexico, those areas with majority indigenous
population have poverty rates of up to 80%. In Guatemala, the majority of persons of
indigenous origins have no formal schooling and only 40% have received literacy programs.
In Bolivia and Mexico, indigenous children receive on the average three years less of
education than non-indigenous children (UNDP, Human Development Report 1997).
During the armed conflict in Guatemala, almost 100,000 indigenous persons arrived in
Mexico. In Peru, 90% of the population that has been displaced by the effects of armed
conflict is indigenous. Though the estimates are imprecise, in Colombia also, indigenous
groups that live in the North of the country have been displaced by the violence.
10 Can�ado Trindade, cit.
11 Garret�n, Roberto,
"Estudio sobre Aplicaci�n en Chile del derecho internacional de los refugiados.
Normativa y pr�ctica," in Jeanette Irigoin, comp., Seminario sobre derecho de
refugiados en el sur de Am�rica Latina: armonizaci�n legislativa y de procedimiento,
ACNUR-IEI, Santiago, 1996.
12 OAS-GA Res.1336 (XXV-0-95).
13 Cu�llar, Roberto,
"Bases jur�dico-pol�ticas de Cartagena ante los nuevos retos de la protecci�n
integral de los derechos humanos de las poblaciones migrantes," (Ponencia para
reuni�n de expertos de ACNUR, Montevideo, 10-12 de mayo, 1993 (mimeo).
14 Interdiction at sea,
adjudication practices that are discriminatory on their face, temporary protective status,
prolonged internment and forcible return without screening were all used by different
governments and at different times for these groups of forced migrants. In all cases, the
reasoning behind those measures was that the sudden flow created emergencies to which
governments needed to respond quickly, without adequate preparation and with a high degree
of improvisation. For details, see U.S. Committe for Refugees, World Refugee Survey
1993 and 1994, Washington, D.C.
15 It is worth noting that,
even if we decide that the members of the group are aliens who have effected an illegal
entry, that does not leave them completely unprotected. All "persons within the
jurisdiction" of a state are at a minimum entitled to humane treatment,
non-discrimination, due process of law and freedom from prolonged arbitrary arrest, among
other rights. ICCPR, Arts. 1, 7, 9, 10 and 16; Am. Conv., Arts. 5, 7, 25.
16 Art. 1.A.2 of the 1951
Convention. The UNHCR maintains that some acts may be considered persecution if they are
knowingly tolerated by the authorities or when the authorities are unwilling or unable to
offer effective protection.
17 Arthur C. Helton,
"Non-refoulement," in UNHCR-IIHR-Govt of Costa Rica, Diez A�os…,
cit., p. 233.
