Human Rights Day, 10 December 2004

HUMAN RIGHTS EDUCATION

"Education shall be directed to the full development of the human personality and
to the strengthening of respect for human rights and fundamental freedoms. It shall
promote understanding, tolerance and friendship among all nations, racial or
religious groups, and shall further the activities of the United Nations for the
maintenance of peace"

(Universal Declaration of Human Rights, Article 26.2)

Human Rights Day 2004 is dedicated to human rights education. On 10

December, the United Nations General Assembly is devoting a special plenary
session to mark the end of the United Nations Decade for Human Rights Education
(1995-2004). At the meeting, the General Assembly is expected to proclaim a World
Programme for Human Rights Education. The first phase of the Programme, to run
from 2005 to 2007, is to be devoted to human rights education in the primary and
secondary school systems.

Announcing the theme, Mrs. Louise Arbour, the UN High Commissioner for
Human Rights, stated in Geneva on 16 November 2004: "Every year, Human Rights
Day reminds us of persisting human rights problems in our communities and in the
world, and of the huge effort still needed, on the part of each and everyone of us, to
make human rights a reality for all".

UNESCO Director-General Koïchiro Matsuura stated that "Human rights

education is indispensable for every individual to fully enjoy and claim a life of
security and dignity. It is indispensable for public officials to give effect to human
rights commitments by the State. Finally, it is indispensable for the entire society to
develop and nurture a human rights culture as a prerequisite of harmonious and
peaceful development".
 The High Commissioner and the Director-General have called on everyone to
take the opportunity provided by Human Rights Day to organize educational
activities, disseminate good practices and launch future initiatives in this area, "in a
spirit of cooperation and mutual respect among all those involved. Human Rights
Day should provide us with an opportunity to pay tribute to human rights educators
-- indeed, human rights defenders - who, in formal and informal settings, in small or
large communities, and often encountering difficulties and hazards, contribute to
building a universal culture of human rights".

The Office of the High Commissioner for Human Rights is the coordinator of the
United Nations Decade for Human Rights Education (1995-2004). It has been
carrying out many activities related to the Decade in cooperation with UNESCO.

Background

The importance of human rights education has long been recognized by the
international community. The prominence accorded to it at the Vienna World
Conference on Human Rights in 1993, and the fact that the United Nations decided
to establish the Decade for Human Rights Education, are evidence of this.

In the words of the General Assembly resolution establishing the Decade,

human rights education is intended to be "a life-long process by which people at all
levels of development and in all strata of society learn respect for the dignity of
others and the means of ensuring that respect in all societies". In this sense, human
rights education significantly contributes to promoting equality and sustainable
development, preventing conflict and human rights violations and enhancing
participation and democratic processes, with a view to developing societies in which
all human rights of all are valued and respected.

During the Decade, Governments, international organizations, national

institutions, non-governmental organizations, professional associations, all sectors
of civil society and individuals were asked to establish partnerships and to
concentrate their efforts on promoting a universal culture of human rights through
human rights education, training and public information. The international Plan of
Action for the Decade set out detailed objectives for the international community:
the assessment of needs and formulation of effective strategies; the building and
strengthening of programmes and capacities for human rights education at the
international, regional, national and local levels; the coordinated development of
effective materials; the strengthening of the role and capacity of the mass media;
and the global dissemination of the Universal Declaration of Human Rights.

In February 2004, the High Commissioner for Human Rights submitted to the
United Nations Commission on Human Rights, at its request, a report on the
achievements and shortcomings of the Decade and on future United Nations
activities in this area, based on consultations with Member States (document
E/CN.4/2004/93). In that report, most responding Governments reported on their
increased human rights education activities, within or outside the Decade's
framework. Most Governments mentioned that human rights education will still
remain a priority in their countries, since specific groups or issues have not been
dealt with and appropriate coordination mechanisms for human rights education are
not yet in place.

In April 2004, the Commission on Human Rights adopted resolution 2004/71, in

which it took note of the need to continue a global framework for human rights
education beyond the Decade. Accordingly, the Commission recommended the
proclamation of a world programme for human rights education, to begin on 1
January 2005, structured in consecutive phases, in order to maintain and develop
the implementation of human rights education programmes in all sectors. The
Commission also requested the Office of the High Commissioner to prepare, in
cooperation with UNESCO and other relevant governmental and non-governmental
actors, and submit for consideration and adoption to the General Assembly at its
2004 session, a plan of action for the first phase (2005-2007) of the proposed world
programme, focusing on the primary and secondary school systems, which is
available as document A/59/525.

Conclusion

Fifty-six years ago, the United Nations General Assembly recognized the equal
and inalienable rights accorded to every human being by adopting the Universal
Declaration of Human Rights. The Declaration calls upon every individual and every
institution of society to strive, by teaching and education, to promote respect for
human rights and to secure their universal and effective recognition and
implementation.
 The proclamation of the United Nations Decade for Human Rights Education
represented not the beginning but the maturation of the global effort for human
rights education. Consistent with the provisions of Article One of the Charter,
United Nations activities in the field of human rights have, for more than fifty years,
been devoted to promoting and encouraging respect for human rights and for
fundamental freedoms. Specific human rights education obligations have been
embodied in the main United Nations human rights instruments, ensuring the sound
legal basis of the right to human rights education. Thus, States have undertaken
legal obligations, within the framework of international treaties, to provide not only
education in general, but education in and for human rights in particular.

Still, more efforts are needed to realize everybody’s right to human rights
education. The proposed World Programme for Human Rights Education, if adopted
by the General Assembly, will ensure a priority focus on human rights education
within the international agenda, provide a common collective framework for action
for all relevant actors, support existing programmes and provide an incentive for
the development of new ones, as well as enhance partnership and cooperation at all
levels.

WHAT IS A FAIR TRIAL?

INTRODUCTION
The right to a fair trial is a norm of international human rights law designed to protect
Individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and
Freedoms, the most prominent of which are the right to life and liberty of the person. It is
Guaranteed under Article 14 of the International Covenant on Civil and Political Rights
(ICCPR),1 which provides that “everyone shall be entitled to a fair and public hearing by a
Competent, independent and impartial tribunal established by law.”
The fundamental importance of this right is illustrated not only by the extensive body
Of interpretation it has generated but, most recently, by a proposal to include it in the
nonderogable
Rights provided for in Article 4(2) of the ICCPR. 2 The right to a fair trial is
Applicable to both the determination of an individual's rights and duties in a suit at law and
With respect to the determination of any criminal charge against him or her. The term “suit at
Law” refers to various types of court proceedings—including administrative proceedings, for
Example—because the concept of a suit at law has been interpreted as hinging on the nature of
The right involved rather than the status of one of the parties.3 For the purposes of this guide
Only proceedings involving criminal charges will be considered since non-governmental
Organizations (NGOs) typically monitor criminal trials or, more precisely, criminal trials
Involving “political” offenses.4
Due to the specifics of each individual case and the interests of monitoring
Organizations, a detailed rendition of trial observation aims is not feasible. The key general
Goals may be summarized as follows:
• to make known to the court, the authorities of the country and to the general public
The interest in and concern for the trial in question;
• to encourage a court to give the accused a fair trial. The impact of an observer's
presence in a courtroom cannot be evaluated with mathematical precision.
However, both observers and defense attorneys have pointed out that a monitor's
1 International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI),
December
16, 1966, entered into force March 23, 1976 [hereinafter ICCPR].
2 See Draft Third Optional Protocol to the ICCPR, Aiming at Guaranteeing Under All Circumstances the
Right to
a Fair Trial and a Remedy, Annex I, in: “The Administration of Justice and the Human Rights of
Detainees, The
Right to a Fair Trial: Current Recognition and Measures Necessary for Its Strengthening,” Final Report,
Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of
Minorities,
46th Session, E/CN.4/Sub.2/1994/24, June 3, 1994 [hereinafter The Final Report], at 59-62.
(http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/d8925328e178f8748025673d00599b81?Open
docume
nt).
3 See Dominic McGoldrick, The Human Rights Committee, Its Role in the Development of the
International
Covenant on Civil and Political Rights (Clarendon Press, Oxford: 1994), at 415.
4 There is, at present, no positive definition of what constitutes a “political offense” and therefore little
guidance
on which proceedings may be deemed “political” in nature. In this context it should be noted that trial
observation
is a very useful mechanism for the prevention of human rights abuses but one that, necessarily, depends
on the
willingness of a government to conduct a trial in the first place. As is well known, in many areas of the
world
individuals are still being arrested, imprisoned and executed without any trial at all.

Basic Fair Trial Criteria

A. Pre-Trial Rights

1. The Prohibition on Arbitrary Arrest and Detention

2. The Right to Know the Reasons for Arrest

3. The Right to Legal Counsel

4. The Right to a Prompt Appearance before a Judge to Challenge the

Lawfulness of Arrest and Detention

5. The Prohibition of Torture and the Right to Humane Conditions during Pre-trial
Detention
6. The Prohibition on Incommunicado Detention

B. The Hearing

1. Equal Access to, and Equality before, the Courts

2. The Right to a Fair Hearing

3. The Right to a Public Hearing

4. The Right to a Competent, Independent and Impartial Tribunal Established by Law

5. The Right to a Presumption of Innocence.

6. The Right to Prompt Notice of the Nature and Cause of Criminal Charges

7. The Right to Adequate Time and Facilities for the Preparation of a Defense.

8. The Right to a Trial without Undue Delay.

9. The Right to Defend Oneself in Person or through Legal Counsel

10. The Right to Examine Witnesses

11. The Right to an Interpreter

12. The Prohibition on Self-incrimination.

13. The Prohibition on Retroactive Application of Criminal Laws

14. The Prohibition on Double Jeopardy

C. POST-TRIAL RIGHTS

1. The Right to Appeal.

2. The Right to Compensation for Miscarriage of Justice.

III. TRIAL OBSERVATION

1. Choice of Trials.

2. Selection of Trial Observer.

3. Informing the Government.

4. Briefing.
5. Translators.

6. Travel and Housing Arrangements; Visa and Entry Formalities

7. Public Statements Before, During and After a Mission.

8. Contacts and Interviews During the Mission.

9. Seating in the Courtroom; Notes.

10. Observer's Report.

IV. CONCLUSION

APPENDIX: NOTE ON SOURCES

A. Treaties

B. Other International Standards

C. Jurisprudence

D. International Criminal Tribunals

E. Other Reference Materials

EQUALITY BEFORE THE LAW

All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.

PLAIN LANGUAGE VERSION:

When children are born, they are free and each should be treated in the same way.
They have reason and conscience and should act towards one another in a friendly
manner.

Inalienable Rights
A response to "When Rights are Wrong" by Tracey Meares and Dan Kahan
Jeremy Waldron

I am a little embarrassed by the points I propose to make in response to the Meares

and Kahan critique of rights, for I am afraid of being dismissed as "abstract,"
"outmoded," "semantic," and "scholastic." Perhaps I should start by suggesting that
we avoid that sort of dismissive rhetoric. After all, the authors acknowledge towards
the end of their article that the issues they address are complex and delicate, and
that no one thinks rights are altogether unimportant. If that is so, there might be
virtue in not trying to discredit up-front those who wish to be a little more thoughtful
about the dangers of alienating our rights than they are.

I use the word "alienating" advisedly, because the issue is whether constitutional
rights-such as the Fourth Amendment right to security against unreasonable
searches and seizures-should be regarded as inalienable or not. Inalienable is not
just a pretty word, inserted by Thomas Jefferson into the Declaration of
Independence for rhetorical effect. It means rights that may not be given away by
those who have them, and therefore that no system of absolute power may ever be
defended on the ground that reasonable people would have found it prudent, in
certain circumstances, to alienate these rights. Meares and Kahan say that "we
ordinarily think of rights as belonging to individuals," with the implication that of
course they can be sold or bargained away like any other form of property. In fact,
there was a century or two of controversy in early modern rights theory about that
very point. Some sixteenth century theorists defended slavery, for example, on
what we would recognize as Hobbesian grounds: it would be rational for a person or
a whole people to sell them into subjection in order to better preserve their life and
security. Insistence on the inalienability of rights was a way of opposing such
contracts, and it was this opposing conception-the idea of rights held in trust and
the right-bearer as steward rather than owner of his rights-that triumphed in works
of John Locke and the formulations of Jefferson. I am afraid this understanding is two
hundred years older than the "1960s understanding" that Meares and Kahan
dismiss as anachronistic, but it may be worth bearing in mind.

Alienating a right is different from exercising it or waiving it in a particular case. A

police officer comes to my door and asks to look around my apartment; if I give my
permission, I have waived my right. But the next time he comes, he must ask again,
and if he is refused he cannot rely on my previous permission. He must have a
warrant, and the grounds for his search must be reasonable. Now one can view this
as a difference in degree. But from the facts laid out in the article, it seems that we
are talking about an alienation of the right to be free from unreasonable searches,
not just a waiver in a particular instance. The CHA tenants-or "an overwhelming
majority of them"-agreed in advance that their apartments are to be open
indefinitely to mass searches whenever the police or the housing authority wishes
to conduct them. An analogy perhaps would be the difference between waiving
one's right to trial by jury on a particular charge and agreeing in advance-say, upon
graduation from high school-that one would not have the right to trial by jury for
any charge or indictment in the future.

Meares and Kahan fail to notice that there is all the difference in the world between
a single voluntary waiver and a general abandonment of one's rights. They see it
purely as an issue of voluntariness. They quite rightly resist any suggestion that
poor people are incapable of giving consent, or that poverty undermines
voluntariness or corrodes the conditions of its meaningful exercise. Those are
certainly important issues so far as particular waivers of rights are concerned. But in
the case of the wholesale alienation of rights, consent is not the issue. These are
rights people hold as a legacy from the past and as a trust for the future. And that's
not just rhetoric either. Meares and Kahan trace a change in social circumstances
over a couple of decades, by which rights that used to be important bulwarks
against oppression have now ceased to be so. Do they imagine that there will not be
changes in the future in the reverse direction? Do they think it unimaginable that
public housing tenants will need to resume their right to security against
unreasonable searches if the rather delicate safeguards that Meares and Kahan
propose collapse or if racial attitudes change again for the worse? And are they
asking us to believe that it will be as easy for the tenants or their successors to take
these rights up again as it was to abandon them? I am not saying that the answers
are obvious. But it is disturbing that Meares and Kahan do not even raise these
questions, and that the only thing they have to say to the issue of inalienability is
that it is unacceptably "paternalistic"-as if the indefinite waiver of a right by a whole
class of persons had no effect on anyone but themselves.

I don't mean to suggest that rights should be immutable. In fact, I agree with the
general drift of the Meares and Kahan analysis: we should be less panic-stricken
than we sometimes are about democratic decisions in this area. But there is an
important difference between a public, legislative, or constitutional debate about
what rights are appropriate for the new millennium, and the abandonment of
certain rights by communities of tenants in housing projects. In a national debate,
we can give some substance to the assurances that Meares and Kahan offer about
equal representation and about the chance for opposing voices to be heard. But
there is something disconcerting about the alacrity with which these authors
embrace the informal majoritarianism of community alienation. They say nothing
about the number of the minority hold-outs. They say nothing about the effect of
their opposition-are the minority now liable to the searches because of majority
support? And they say nothing about the circumstances in which this support is
elicited and obtained. Does one sign the forms as a condition of getting a lease? Or
is one's housing secure quite independently of whether one gives permission for
mass searches? Again, I don't know the answers to these questions. But I am
troubled by an article that does not even ask them, writing off any opposing voice
as "a theological discourse divorced from the life of the nation." N

Who are refugees?

A refugee is a 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 to, or owing
to such fear is unwilling to, avail himself of the protection of that country..." (The
United Nations Convention Relating to the Status of Refugees, 1951).

Imagine being so scared of being killed, tortured or victimized that you would leave
your home, all your possessions and connections with your community, for an
uncertain future. Fear drives people to leave with only a few belongings on a
journey which is full of uncertainty. Will it be safe? Will they be able to return? In
2004 there were over 17 million refugees and 22 million internally displaced people
who had taken that risk.

ROLE OF UN commission
United Nations’ Commission on Human Rights
Introduction

In July of 1964 Malcolm X attended the second meeting of the Organization of

African Unity. He presented a petition asking “In the interest of world peace, we
beseech the heads of the independent African states to recommend an immediate
investigation into our problem by the United Nations Commission on Human
Rights.” According to UN procedures, a nation can request a human rights
investigation of another country on behalf of the people whose rights have been
violated. The African heads of state discussed the proposition at the OAU summit
but failed to bring the case before the UN based in part by pressure from the US
State Department.
Although the United Nations Commission of Human Rights never conducted the
investigation, students will create a mock hearing and investigation. This simulation
allows students to examine the human rights violations within the United States
during the 1950’s and 1960’s, viewpoints of African American leaders of the time,
and review the Universal Declaration of Human Rights. This exercise also serves as
a model for potential investigations of current violations. Students will run the
hearing, present various viewpoints and act as journalists reporting on the
investigation.

Lesson Objectives:

Students will learn about various stakeholders during a role play including; UN
Commission Human Rights panel member, UN delegate, African American leader,
US citizen or journalist.

Students will research the backgrounds of various African American leaders and
events of the African American Freedom Struggle.

Students will identify the human rights violations perpetrated against African
Americans during the 1950’s and 1960’s.

Students will discuss the violations with their classmates during the role play.

Students will communicate in a written assignment the correlation between events

and conditions for African Americans in the United States during the 1950’s and
1960’s and the human rights treaties of the United Nations.

Activity/Instructions

Classroom set-up:

Class set of the Universal Declaration of Human Rights (UDHR).

Role Play Handouts A thru E.

Access to a computer lab for students to conduct their research.

For the simulated panel hearing, you will need 5 desks/chairs set up at the front for
the members of the panel and 9 desks/chairs for the witnesses positioned in a
semicircle facing the panel members. The rest of the class, including UN delegates
and reporters will sit behind the witnesses, either in rows or a semicircle.
Markers and paper for students to create name placards and posters.

Procedure:

Pass out role play handouts and read the introduction with the class.

Play the interview with Malcolm X in Cairo after the African Summit, which can be
obtained from the Malcolm X Project at Columbia University.
http://www.columbia.edu/cu/ccbh/mxp/archival.html

Review the UDHR and the events on the timeline from part one of the lessons.

Assign roles and allow time for research. The panel members will need a place to
discuss the procedures for the hearing while the other students conduct research.

After students have had sufficient time to prepare, allow the panel to begin the
hearing. The panel will conduct the hearing and the teacher will observe, providing
guidance only when needed.

At the close of the hearing the reporters will circulate the room asking questions of
the panel members, UN delegates, African American leaders and citizens.

While reporters are interviewing witnesses, citizens and delegates, the panel
members reconvene to vote whether or not human rights violations have occurred
and the recommended action, if any. The panel chairperson will make the
announcement.

After the announcement, students will return to their regular seats to complete their
writing assignment. Each writing assignment depends on the role. Writing
assignments include an editorial, a letter, a speech and a newspaper article. You
may wish to display the various writing assignments on a board at the end of the
activity.

After the students complete their writing assignment, facilitate a class discussion.
Consider the following questions:

Why did Malcolm X ask African nations to call for an investigation, why not European
nations?

Did you agree with the conclusion of your classmates representing the panel?

Which human rights violations were the most serious? and why?

If the UN Commission on Human Rights had convened this hearing in 1964, what do
you think the outcome would have been?
Why do you think the US State Department attempted to keep this hearing from
occurring in 1964?

If a hearing like this took place in the United Nations about US human rights
violations today, which issues would be raised? Who would serve as witnesses and
which human rights would they consider violated? What evidence would they
provide?

The Right to Seek Asylum: A Dwindling Right?

By Fatimah Mateen and Brian Tittemore

Article 14 of the Universal Declaration of Human Rights provides that "everyone has
the right to seek and enjoy in other countries asylum from persecution." The
aspirational nature of the Declaration and the pervasive principle of state
sovereignty have prevented Article 14 from being entrenched as right of asylum
seekers to enter the borders of countries. Rather, a rule of customary international
law appears to have developed that prevents an individual from asserting a right to
enter a state unless he or she is a national of the receiving country.

Nonetheless, the manner in which a state exercises its sovereignty has a direct
effect upon the ability of refugees to seek protection from persecution, and without
a meaningful opportunity to make a refugee application, the "right" to seek asylum
is rendered illusory.

Although the media today is filled with reports of ethnic cleansing campaigns, civil
wars, anarchy, and brutal dictatorships, there appears to be a trend in many
industrialized countries toward restricting the ability of refugees to seek asylum.
Many countries are now preventing refugees from entering at their borders,
expanding the grounds for denying asylum, and denying refugees social assistance.
This shift toward a more rigorous exercise of state sovereignty appears to be in
response to the recent significant increase in the number of asylum seekers around
the world. Between 1990 and 1993 the number of asylum seekers in the European
Community jumped from 320,000 to 560,000. The deluge of asylum applicants and
the economic and social problems that often follow have, in turn, increased
xenophobic attitudes in countries that previously protected those fleeing human
rights violations.

Restrictions in Europe
The significant increase in the number of asylum seekers in Germany led that
country to reform its asylum laws. In June 1993, Germany enacted amendments
designed to deny the right to seek asylum to persons travelling through "safe third
countries" or who come from "safe countries of origin." Under the revision, a "safe"
country is one "where the legal situation, the application of the law and the general
political circumstances justify the assumption that neither political persecution nor
inhumane or degrading punishment or treatment takes place." As Germany is
surrounded by states deemed "safe," in theory no person entering Germany by land
has the right to asylum in Germany. Some politicians have argued that the asylum
reforms did not go far enough and that Germany should completely abolish the right
to asylum within its territory.

Likewise, in France, steps have been taken to make it more difficult for people to
claim refugee status. Airports have been declared international zones where French
law does not apply. In addition, the French constitution, which once obliged the
country to consider all refugee claims, has now been amended to permit the
government to refuse to examine the refugee requests of individuals whose refuge
requests have been refused in other European Community states.

These changes in the immigration laws of Germany, France and other European
countries have come about, in part, in light of the possible implementation of the
Schengen Free Travel Accord. The Accord, which was to come into effect in February
1994 but has since been postponed indefinitely, lifts border controls between some
European Community states and stipulates that regardless of the Contracting Party
to which an alien addresses an application for asylum, only one Contracting Party
shall be responsible for processing that application, namely the state that first offers
the alien visa or residence status, or, for undocumented residents, the state through
which the alien first entered the Community. If the Accord comes into effect, every
Contracting Party will still have the option, but not the obligation, to entertain the
claims of applicants whose cases have been denied by other Schengen Accord
States. Thus, the potential effect of the Accord may be too severely restricting
asylum prospects in the European Community.

Canada and the United States—Closing Their Doors?

Changes that have the affect of limiting the ability to seek refugee status have also
been implemented in Canada and the United States. In 1993, Canada increased the
penalties imposed on transportation companies that bring people with improper
documents into the country. In addition, authorities have increased "external
control" measures that may prevent refugees from entering Canada. For example
"Operation Shortstop" was implemented to prevent people who lacked proper travel
documentation or other regulatory requirements from boarding planes bound to
Canada from airports in third countries. These changes have been effected despite
the fact that refugees are often unable to obtain proper documentation from the
regimes they are fleeing and hence travel with false documents, or without any at
all.

Likewise, in response to anti-immigration sentiment and the continuing rise in

asylum applications, the United States has taken steps to limit the number of
asylum seekers reaching its borders. For example, the Clinton administration
prohibited Cuban and Haitian asylum seekers from entering the United States to
seek asylum by setting up in-country processing centers, and by creating "safe
haven" areas outside of the United States for those interdicted at sea. Those picked
up at sea had no possibility of resettlement in the United States, but were provided
with the option of remaining indefinitely in a safe haven camp, or of repatriating
voluntarily. This policy, effectively preventing Haitians and Cubans from exercising
their right to seek asylum in the United States or in any other country, sent a
message to the international community that it is acceptable to ignore international
law when faced with a crisis close to home.

Furthermore, in-country processing centers in Haiti and Cuba were established to

encourage those who wanted to apply for refugee status to do so within their
country of origin. This policy, in turn, raises such issues as whether the process
abrogates an asylum seekers right to flee persecution, and whether persons going
through in-country processing are able to come under the UNHCR’s mandate by
satisfying the definition of a refugee under the 1957 Convention and 1961 Protocol,
which require a refugees be outside his or her country of nationality.

New United States Asylum Regulations—Further Constraints

In December 1994, the U.S. Immigration and Naturalization Service published its
final asylum regulations. The reforms, among other things, institute procedural
changes to speed up asylum adjudications, and restrict asylum applicants’
authorization to work. In addition, the new asylum regulations include a provision
similar to Germany’s safe third country restriction.

Professor Rick Wilson, Director of the International Human Rights Law Clinic at the
Washington College of Law, asserts that the restrictions on work authorization have
impacted the Clinic’s clients more than any of the other amendments. Under the
new regulations, an asylum applicant must wait 15 days after a grant of asylum, or
180 days after filing a complete petition that has not been reviewed by the
authorities, before receiving work authorization required for lawful employment in
the United States. Wilson describes most of the Clinic’s clients as arriving in the
United States indigent with no support system, and as having been forced to
abandon what few assets they may have owned in their country of origin. Wilson
poses the question, "with no means to support themselves, who will take care of
these people?"

Wilson also has reservations about the safe third country provision implemented by
the United States and many other countries. Most of the asylum seekers in the
United States are from El Salvador, Guatemala and Nicaragua. These nationals must
travel through Mexico in order to reach the United States. Under the revised
regulations, these people could be sent back to Mexico to apply for asylum there.
The problem, according to Wilson, is that Mexico has one of the worst reputations
for dealing with refugees and has exhibited hostility toward immigrants.

As a result of the strain that increasing numbers of refugees are placing upon the
social and legal systems of developed countries, restrictions on the ability to seek
asylum in these countries are likely to continue in the future. Unfortunately, many of
the measures resorted to by these countries appear to be contrary to the intent and
spirit of international asylum protection. Refugees are not being permitted to seek
refuge or are facing forced repatriation, such as Vietnamese refugees in Hong Kong
and Haitians in Guantanamo Bay.

The Need for a New Approach—Balancing State Sovereignty with the Protection of
Refugees

The ultimate answer to this problem would be to eliminate the crises around the
world that cause people to seek refugee status. In this respect, more pro-active and
preventative diplomatic efforts on the part of the international community are
required to assist in peacefully resolving many conflicts, such as ethnic or tribal-
based secessionist disputes, before they develop into environments which foster
well-founded fears of persecution. Unless and until such cooperative and pacific
dispute resolution mechanisms become a practical reality, however, it appears that
alternative measures must be taken which provide genuine asylum seekers with
humanitarian assistance and protection from persecution, and at the same time
take into account the financial and social pressures on states traditionally capable of
accommodating refugees.

One possible approach could be for developed countries to work together to

establish a centralized international immigration system to fairly allocate refugees
among the developed countries according to their respective sizes, populations, and
resources. Alternatively, developed countries might consider establishing and
supporting, on a multilateral basis, temporary refugee communities outside of their
borders in territories of amenable third countries. Such temporary facilities would
provide refugees with short term protection and assistance. Unlike past
arrangements such as the strategy at Guantanamo Bay, however, future
accommodations should either provide refugees with meaningful opportunities to
apply for asylum in other countries, or incorporate equitable resettlement plans to
prevent refugees from being placed in long term "limbo".

In the absence of concerted efforts on the part of developed countries to find a

balance between domestic concerns over proliferating refugee crises and the need
to provide refugees with humanitarian assistance and genuine protection from
persecution, current trends suggest that the right to seek asylum is in danger of
becoming a right without substance.