May 20, 2004
For immediate release.
For more information contact:
Cheryl Little, Esq.
(305) 573-1106, ext. 1020
James Cavallero, Esq.
Deborah Anker, Esq.
May 20, 2004
The Inter-American Commission on Human Rights has affirmed the fundamental right of all asylum seekers, including those interdicted on the high seas, to seek and receive asylum, including the right to a hearing to determine their eligibility for refugee and asylum status. The Commission issued its pronouncement today in a ground-breaking decision pursuant to the American Declaration of Human Rights. Florida Immigrant Advocacy Center (FIAC), together with the Harvard Law Student Advocates for Human Rights and the Harvard Immigration and Refugee Clinic filed the action before the Commission last March 18.
The advocacy groups' petition was filed on behalf of Haitian refugees who have been fleeing their country since President Jean-Baptiste Aristide was forced to leave that country in February. Since that time, numerous reports indicate, the United States has been summarily removing to Haiti refugees interdicted on the high seas. The Inter-American Commission's decision today created critical precedent in recognizing asylum claimants' right to fair hearings even when interdicted in international waters, and in asserting the Commission's jurisdiction over any case where violations are alleged to have been committed by any State party to the American Declaration, irrespective of whether the violating State (in this case, the United States) has ratified the American Convention on Human Rights.
Despite the "floating Berlin Wall" created by U.S. Coast Guard cutters around Haiti, refugees have continued to flee that country. In fact, in a press release dated April 27th, the Coast Guard acknowledges that 651 Haitians were interdicted and returned to Haiti. The Commission's decision is considered critical by refugee advocates in light of President Bush's comments following the February ouster that "we will return all refugees to Haiti and want to discourage all Haitian refugees from coming" to the United States.
While the United States appeared to acknowledge its asylum-related obligations in its response in the case, the Commission found that the American government had failed to demonstrate it was complying with those obligations. As a result, the Commission ordered that the United States provide on-going bi-monthly reports to the Commission concerning Haitians who are interdicted by the United States and who raise claims for asylum. The mandated reports must include information respecting: "the number of individuals who have been interdicted, the number of individuals who have made refugee claims and the conditions under which those claims were made and considered, the number of claims that have been accepted and rejected and the grounds for those decisions, and the fates of the persons concerned."
The case was unusual in that the United States, while challenging the Commission's jurisdiction, nevertheless appeared to have acknowledged its obligation to provide asylum screening interviews to interdicted Haitians. Such recognition by the United States is itself an important precedent, especially in light of the United States Supreme Court decision in Sale v. Haitian Centers Council, Inc., where the high court found that the right to apply for asylum and refoulement (non-return) protection do not apply extraterritorially. Moreover, today's decision by the Commission ordered the United States to comply with regular reporting and monitoring requirements. While claiming no abuses had taken place, the United States provided no factual support for its conclusory allegation. The Commission declared that the United States must assure that interdicted asylum seekers are receiving hearings before they are forced to return to Haiti.
Refugee and human rights scholars and advocates involved with the Commission's decision have declared it a major achievement on many fronts. Noting that the Commission found the United Status cannot escape its international obligations and oversight by international human rights bodies. "The authority to issue measures applies to all OAS member states." James Cavallero, lecturer on law, of Harvard Law School's Human Rights Program, declared, "This is a great jurisdictional victory establishing this tribunal as a key decision-maker on human rights for the Americas."
The Commission disagreed with the American government's assertions that conditions since the recent ouster have stabilized in Haiti such that few, if any, refugees presently are fleeing. Indeed, the Commission expressed concern "regarding reports of killings and other human rights violations in Haiti." Its concern extended to "the welfare of individuals who may face persecution as a result of these circumstances and who wish to exercise their right to seek asylum from other states." The Commission flatly stated that persons on the high seas have a "right to seek and receive asylum." The Commission declared this to be a fundamental right under the American Declaration. The Commission also specifically concluded that a person seeking refuge has a right to a hearing to establish whether in fact she qualifies for refugee status.
Deborah Anker, Lecturer on Law and Director of the Harvard Law School's Immigration and Refugee Clinical Program, said in response to the Commission's decision that, "Asylum seekers fleeing Haiti now have recognition of fundamental rights, the right to seek and receive asylum and the right to a hearing. It is critical that an international human rights body has clearly recognized these rights as applying extra-territorially."
Cheryl Little, executive director of FIAC, said "This welcome decision follows a series of discriminatory measures by our government which have prevented bona fide Haitian refugees from obtaining protection. The OAS has rightfully recognized current unstable conditions in Haiti and, thankfully, is holding our government accountable."
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