Chapter 5: Vulnerable Groups

“All humanity is one undivided and indivisible family, and each one of us is responsible for the misdeeds of all the others.”

Mahatma Gandhi, 1939

Our violent world is claiming many new victims. At our earliest meetings, we recognized that there were many especially vulnerable people whose lives were at risk and whose well-being was threatened. Foremost among those groups were the young: those in the cities of the rich countries facing unemployment and dispiriting alienation and those in the poor countries struggling for daily survival.

Many of us in the Commission have first-hand experiences in our own countries of the great problem of street children. We see them in our capitals shining shoes or begging for a few coins. It is easy to turn aside but not easy to ignore them, such are their numbers on city streets. Their very presence is, of course, a condemnation of our global society and we should all try to understand why, despite all our wealth and our scientific mastery, we still have young children living in such conditions. We were not only concerned with the situation of the young but also with the growing number of what we chose to call the up rooted. In the last decades we have watched with alarm the swelling body of refugees and displaced people fleeing in search of a better and more secure life. Hundreds of thousands of others have been victims of mass expulsions carried out for economic or political reasons or rendered stateless by circumstances beyond their control.

We believe that much more needs to be done to anticipate these large-scale population movements, to contain them if possible and to ensure, when they happen, that effective humanitarian assistance is speedily made available.

Two further groups of people drew the humanitarian concern of our Commission. The first was indigenous peoples – those first inhabitants of colonized countries or regions. There are an estimated 200 million indigenous peoples and in some cases their economic and social systems and culture are perilously near to extinction. Our Commission, composed as it is of men and women from very different societies and cultures, is concerned about the threat to indigenous peoples because it is a denial of our rich human diversity.

Another group which also attracted our attention were the disappeared. These are the people – sometimes political opponents but often innocent by-standers – who are abducted by para-military forces and sometimes killed without leaving a trace. Such intimidation and extra-judicial killing is outlawed internationally, but in some countries has been used as a means of stemming all opposition. We were particularly concerned with the increasing use of this practice by States.

 

The Young

“We cannot always build the future for our children, but we can build our youth for the future.”

Franklin D. Roosevelt , 1940

The Protection of Children

It is a great indictment of our age that the victims of man’s inhumanity are often the most innocent. Children, it is claimed, are our future. But everywhere, in rich and poor countries alike, they are the victims of abuse, neglect, preventable disease, hunger and war. It is probably a minority of the world’s young which enjoys the secure and happy childhood promised by the United Nations Declaration of the Rights of the Child. “Mankind owes the child the best it has to give”, it proclaims; children shall be given the opportunities and facilities “enabling them to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity”. Yet the man-made disasters of famine and war claim them as remorselessly as adults.

In assessing the humanitarian issues of our times, we identified the situations of the young as a cause of priority concern. The young are the most vulnerable because they are the most powerless group in society. They do not have a vote and, with the exception of relatively few privileged children, they possess no economic resources. Physically weaker, children can be and often are abused by adults. In the course of our discussions we singled out a number of special problems affecting children: their economic and sexual exploitation, the effects of civil and armed conflicts, and their abuse within the family and in institutions and prisons. We also noted that the question of infanticide was hardly addressed by international organizations or governments and that female babies were, in large numbers, victims of traditional biases and economic considerations. Similarly young girls because of forced marriages and certain traditional practices were especially vulnerable in some countries. We were also aware of the problems met by children without parents or guardians, refugee children and abandoned children, and of the impact of inter­ country adoption whereby children are taken from poor countries and sold to families in rich countries. We also recognized with the spread of terrorism the particular vulnerability of children as victims of abduction for political or economic reasons. Finally, we noted with alarm the promotion, through the media and commerce, of a culture of violence affecting children, ranging from war toys to the use of violence by television and other mass media. These are all serious and important issues and our list of concerns is by no means exhaustive.

The ICIHI Working Group on Children chose four issues for special analysis and organized in 1984 an international symposium in Amman to discuss them. They were: the situation of street children, children as victims of armed conflicts, the inter-state displacement of children and the proposed Convention on the Rights of the Child which is presently being drafted by the United Nations. The findings and recommendations of the symposium were published for the benefit of governmental and non-governmental organizations working in the field of child welfare.* Considerable progress has since been made in increasing public awareness and in promoting these causes.

We identified over twenty specific issues which, in our opinion, remain neglected in the existing literature and programmes relating to the young. However, limited time and resources did not allow us to study them all adequately. Two of them – the Urban Young and Street Children – were analysed and became the subjects of ICIHI Sectoral Reports to which we refer later in this chapter. There are other issues, however, which we believe should be studied further by governmental and non-governmental organizations.

Infanticide is generally defined as the killing of newborn children by or with the consent of a parent. The term is also used to refer to the practice of killing newborn children in certain societies as a socio-religious institution. Among some peoples infanticide may be perceived as a means of ensuring the survival of the community as a whole. For example, a mother may opt for the growth and development of a first child by doing away with an unexpected second child, especially in a situation of poverty or severe food shortage. Babies resulting from unwanted pregnancies or born out of wedlock are also killed. In other societies the male baby is prized more highly than the female. As a consequence, female infanticide is practised, particularly where there are restrictions on the number of children due to demographic pressures. In industrialized societies the incidence of infanticide is generally associated with criminal behaviour or psycho-social disturbance. Although it is difficult to verify, it is reported that some 400 societies in different parts of the world are believed to have practised infanticide either occasionally or frequently. Research on infanticide is limited to anthropological studies of specific societies or to sporadic medical reports. We feel there is a need for a closer examination of the subject, the circumstances leading to it and the socio-cultural context in which it is practised, as well as ways and means by which it could be prevented.

The effects of proliferating armed conflicts on the young troubled us greatly. War has always claimed the lives of the innocent. Contemporary armed conflicts, however, are increasingly affecting the civilian populations. As we noted when examining the question of humanitarian norms in wartime, there have been some 20 million people killed in about 150 armed conflicts since 1945. The majority of them were women and children. Children are also prime casualties in the conflicts between governments and resistance groups which are now affecting a number of countries. Apart from death or damage to health, inter-state and internal wars can cause deep emotional trauma. Growing up in an atmosphere of violence, witnessing the death of a parent or relatives and friends, seeing the destruction of familiar surroundings or experiencing eviction from home are all events which can have a long-lasting effect on children and can result in psychological disorders. In certain extreme cases, children have been abducted from their parents, tortured or sexually abused.

Children are also enlisted on occasion into the armed forces and directly involved in armed conflict. In 25 countries young men can go to war before they reach the age to vote. In countries tom by internal conflicts, children are recruited into the government and opposition forces under the age of 15 years, despite the prohibition under international law. New initiatives are urgently needed to mitigate the effects of armed conflicts on children both in the form of a worldwide consensus about such protection and a strengthening of existing international conventions and protocols to discourage recruitment of children into the armed forces. The present sanctions against governments contravening international instruments in respect to children are limited. Children, it has been argued, should be declared ‘zones of peace’ by being afforded special protection in times of conflict. We believe that this notion of the neutrality and safety of children must be promoted internationally.

In the promotion of a less violent world, the mass media have an important role to play. There is a need for greater efforts to reduce the number of television programmes and cinema films glorifying violence and armed conflicts. Often they spawn a series of comics, videos and toys for young children. The Government of Sweden, recognizing the harm done by the proliferation of war toys , imposed a ban on their sale. Other governments should be encouraged to take similar actions.

We were also gravely concerned by the widespread use and exploitation of child labour throughout the world, in developing and developed countries alike. By most accounts it is on the increase due to the economic recession in the rich countries and the persistent poverty in the Third World. There are an estimated 100 to 150 million child workers under the age of 15 years. The life they are condemned to is a cause for our humanitarian concern.

On the whole, in the rich countries, the child labour that was a characteristic of the nineteenth century has been by and large eliminated as a result of compulsory education, improved standards of living and campaigning by humanitarian bodies, trades unions and other organizations. Nonetheless, many children in these countries are exploited through long hours, low pay and exposure to hazardous and unhealthy working conditions. But child workers are mostly found in developing countries. They work long hours on plantations exposed to dangerous chemicals or doubled up in sweatshops, carpet factories or mines. The kinds of jobs carried out by children are almost limitless. If they work in small subsistence plots they may receive no compensation beyond the recognition that their labour has helped the family to survive. In some countries children may inherit a debt from their parents and be bonded to a moneylender or landowner for life, working only for some food to eat. Even where children earn some money from their work, it is pitifully small. For such children there is no period of carefree childhood.

Among the most disturbing aspects of child labour is the growing demand for young people for sexual purposes. The increase of child exploitation appears to be linked to factors such as the development of tourism and the establishment of military bases. Child prostitution has become big business in a number of Asian and Latin American countries with agents travelling to the countryside for suitable children. Poor parents are deceived into believing that their children will be well looked after and given legal employment. Children once forced into prostitution feel too ashamed to tell the truth to their parents and too scared to denounce their employers.

The tragedy of child labour for the developing countries is that a large proportion of the young are being denied education and training and the opportunity to contribute as adults to future development. They are forced by circumstances into a cycle of poverty, illiteracy, and despair. Too many poor families depend upon the income, however small, brought in by their children. But poverty and the overwhelming problem it presents should not discourage us from action. Parents need to be educated about child labour and children’s legal rights. They need to be warned about hazardous kinds of employment and ruthless employers. Child workers should be encouraged to attend school and learn skills and above all not give up hope of a better future. Already some successful projects exist in several countries to reduce the more exploitative forms of child labour and to generate sympathetic awareness among the authorities. We believe such initiatives need to be further explored and encouraged.

In their programmes for the young, the education services, particularly of poor countries, have not always been imaginative and practical. Curricula and special courses do not as yet take into account some of the realities of the day-to-day life of children. The very youngest of poor children are often forced into premature adulthood. Schools, however, are not preparing them for the hazardous world they must enter. The education services, both formal and informal, also have an important role to play in combating the spread of street children.

The cities of the Third World have swelled and often not been able to provide even the basic amenities for their expanded population. The social and economic deprivation, while sometimes touching off effective community action, has also caused unrest, the break-up of families and the abandonment of children. Urban poverty and deprivation has, thus, forced millions of children out onto the streets, a subject which received our special attention and to which we will revert later. We were deeply concerned by the increasing evidence of the physical and psychological abuse of children in the home. The circumstances causing abuse by parents or guardians of children are still not fully understood, but certainly the stresses of urban life – unemployment, cramped living conditions, in adequate social services – can contribute to the breakdown of family relationships. Children living in continual terror of their own parents, as many do, have no one to turn to. This sense of isolation is never so great as when a child has been sexually abused by a parent or guardian. The effects of such abuse are carried into adult life. We welcome the initiatives being taken in some countries to provide a sympathetic and confidential counselling service to children subjected to such abuses.

Children can also face abuse in institutions run by the authorities, and particularly in prison. We are especially concerned about the practice in nearly all countries, both developed and developing, of incarcerating children with adults, since   we   believe   they   can   be both abused and criminalized. The problem is becoming more acute with the

expansion of the prison population in rich and poor countries alike. Often children who have committed minor crimes are imprisoned simply to keep them off the streets. Clearly this is counter-productive. It teaches children to fear the police and authorities and seek comfort in an adult world, a part of which may be made up of hardened criminals. We believe that the authorities should pursue policies of rehabilitation rather than punishment.

There is still no international instrument protecting children in a comprehensive way. The Declaration of the Rights of the Child which was adopted by the United Nations General Assembly in 1959 is not legally binding. The Commission on Human Rights set up a Working Group in 1979 to prepare a Draft Convention to complement the Declaration. The Convention would, of course, make signatory States responsible for implementation. However, the process of drafting has been slow and the proceedings have not benefited from the participation of many developing countries. Nonetheless the draft Convention represents a leap forward in comparison to the 1959 Declaration because it will, once approved by governments, provide a legally binding instrument for the protection of children and their rights. It is hoped that the process of elaboration and eventual adoption can be accelerated. Special thought must be given to the implementation clauses to be contained in the Convention. The timidity and ineffectiveness of such clauses in other international legal instruments is a major cause of the considerable criticism levelled against them. Innovative means should be found with regard to reporting, monitoring and enforcement procedures. Equally, strategies should be worked out for encouraging States to ratify the instrument.

The protection of the most vulnerable children will require more than words on paper, although they can have an important symbolic effect. Some comfort can be drawn from the fact that in the last decade or so numerous non­governmental organizations have sprung up. Their day-to-day work with children can be a source of ideas, information and action: they can push or shame governments into action and create awareness among the general public. In the end, however, children can only take their rightful place in society if all adults are convinced that the key to the future of our planet is in the hands of the young and that they consequently deserve much more attention than is being accorded to them by contemporary society.

The Urban Young

If the present trends are any indication, it is estimated that by the turn of the century, about half the world’s population will be below 25 years of age. At the same time, it is expected that some 51 per cent of the six billion human-beings will be living in expanding cities. No group is more vulnerable to the series of complex social problems caused by rapid and uncontrolled urbanization than the young. Despite the fact that they constitute the majority among urban populations of most countries, particularly in the Third World, urban planners have neglected their needs and ignored their right s. Without full awareness and urgent action on the part of the authorities and local communities, the tragic situation of the urban children, especially those living in the ever-growing shanty towns, threatens to become exacerbated as their numbers continue to multiply.

While the city has long been seen as synonymous with civilization, as a place of learning, of art and of entertainment, it can also be a place of corruption and decadence where the young are exploited and fall into a life of crime, prostitution and drug abuse. Without adequate social planning in urban areas conducted on their behalf, more children than ever before are growing up at risk to dangers beyond their control. What is needed to resolve their dilemma is a pragmatic strategy which addresses, from a humanitarian point of view, both the causes and consequences of the intolerable strains placed on the urban young.

The most serious problem faced by urban children is inadequate or non-existent access to health care. Because doctors prefer to live in urban areas rather than the countryside, and modern hospitals dominate the skylines of cities in both the rich and poor countries of the world, it is commonly believed that children in urban areas are healthier than their rural counterparts. Recent evidence, however, suggests that this is far from the case, especially in developing countries. Statistics which indicate that people living in cities enjoy better health than those living in rural areas are misleading because they do not distinguish between different socio-economic groups and fail to include most shanty town dwellers, squatters, street children and others not officially registered as urban residents. City hospitals can provide health care , but the majority of the urban poor cannot afford it for their children.

Urban children are besieged daily by a variety of environ­mental hazards which are partly responsible for their deteriorating health. Inadequate sanitation; blocked and overflowing drains; uncollected rubbish; poor water supply; crowded, decaying and collapsing buildings; congested traffic; pollution from industrial plants; and vermin all take their toll. Malnutrition is rampant in most urban centres of the Third World and frequently leads to debilitating diseases and death. Single parents in urban areas with young dependent children most often have neither the training nor the time to earn enough to meet the nutritional requirements of their families. Persuasive advertising tempting children and adults to purchase convenience foods lacking sufficient nutrients for growing youngsters is also a contributing factor to the incidence of poor nutrition. Urban planners, primarily concerned with the demands of dominant social groups, tend to overlook the health risks which urbanization poses for children, and fail to design remedial measures on their behalf. The only way the urban poor in both developed and developing countries have survived is by putting as many members of the household as possible to work. This is especially the case when the head of the household is unemployed. Where unemployment and low incomes are widespread, child labour assumes an important dimension. Although working children worldwide are mostly to be found in the rural sector, the extent of urban child labour is frequently underestimated. The law in many countries allows children to help their parents in agriculture or pasturing, but it commonly prohibits child labour in urban areas. However, in competitive economies, particularly in depressed urban areas of developing countries, most children want and need to work for their personal security and family’s survival.

One of the effects of inadequate legislation and social policy is to push children out of the regulated sectors of the economy into unregulated and unregistered establishments where conditions are usually worse. When children work illegally, exploitative working hours, unfair wages and deplorable conditions become the norm. Jobs seen as too dangerous for adults tend to be taken by vulnerable children. Since they are usually subject to non-contractual recruitment arrangements, child labourers can be laid off without difficulty and cannot claim compensation for work-related injuries. And because children in many countries are forbidden to organize and are not represented by any form of trade union, they have no channels to express their grievances, even less to assert their rights. Without effective legislation and an urban network to protect their interests, millions of urban children are exploited by employers who then escape responsibility for the inhumane hardships they cause.

Aside from the debilitating physical and emotional injuries it causes, exploitative child labour most often results in depriving children of an education. Schools are often far from the child’s place of work and school hours generally clash with the working day. Because of severe economic constraints, a formal education for many children is viewed as a luxury for families which depend on the income of their children.

The curriculum offered by urban schools gives rise to false expectations and does little to prepare children for the challenge of life in the city. Large numbers of children leave schools unskilled, unemployable and with frustrated ambitions. The failure of schools is often attributed to a variety of causes, such as problems in the family, poor teaching, inadequate equipment and buildings and lack of funds. Rarely is blame placed on the inflexible and inadequate education system itself. The multi-faceted dangers confronted by the urban young cannot long be ignored. Urban growth weighted heavily towards the young will translate into insurmountable problems not only for them but also for the social and political fabric of the country unless an integrated humanitarian strategy is promptly devised and implemented. Locked out of the power structures which determine their fate, these young people look to urban planners and the community for a wise and determined effort to defend their rights and promote their interests. Without thoughtful and far-reaching policies and action, many of the urban young are bound to sink into apathy and alienation or revolt and turn to violence.

It would be unduly optimistic to suggest that the problems facing the urban young can be resolved in the immediate future. The challenge posed by them is linked to all sectors and activities of urban society and calls for a holistic approach. But a public awareness of the scope and scale of the problem, is already a beginning.

We therefore feel that in order to contain the situation, it would be useful for governments: 

• To ensure within the government structure a rigorous process of urban planning which takes fully into account the challenge posed by shanty towns and slums and which is sensitive to the needs of the
• To develop effective long-term policies to contain the movement of rural populations, particularly the young, to the cities and provide adequate incentives and possibilities of gainful employment within the
• To   establish   specialized departments   to work   with urbanchildren in resolving common problems they face. The units should have staff specially trained to address the basic issues; be readily available to hear the complaints of the urban young; and be authorized to initiate action on their behalf and prevent their exploitation.
• To establish channels of representation for the urban young to protect and to promote their interests and to mediate in disputes, including labour problems, between them and the local community at
• To introduce legislation aimed at prohibiting child labour in those occupations which pose a risk to health and well-being and, above all, to take effective measures for its implementation.
• To encourage urban policy makers to give higher priority to employment and income-generating activities for adults as a strategy to reduce the incidence of exploitive child labour in the cities. Greater access to credit for informal sector workers would improve the income of many urban families and lessen the economic compulsion on their children to
• To introduce compulsory elementary education into all urban areas. Governments, with the participation of urban communities, should restructure the schooling system to ensure that it provides urban children with relevant education. The curriculum should be flexible enough to accommodate the schedules of working children, and the use of non-formal educational methods which combine academic skills with vocational training and income­ generating work should be
• To develop rigorous guidelines, and establish advisory boards, that circumscribe the extent to which advertising on the mass media manipulate the values of children.

We call upon welfare agencies and non-governmental organizations:

• To operate remedial programmes for the urban young with the participation of community representatives and to offer welfare services at the locations where they work or congregate.
• To incorporate into primary health care programmes for urban children income-generating projects for women, in particular for single-parent women, and to facilitate greater access to child day-care.
• To launch an education campaign for health care which encourages the active involvement of the family and the wider group of people responsible for the young whether at home, work or The campaign should aim specifically at helping the urban community recognize the health needs and susceptibilities of the young. Above all, it should emphasize preventive medicine.
• To establish, in close co-operation with community representatives, counselling centres for the urban young suffering abuse, neglect and conflict which drive them from their There is a need to clarify in legislation the distinction between runaway or abandoned children and juvenile delinquents.

 

Street Children

“In their little worlds in which children have their existence…there is nothing so finely perceived, and so finely felt, as injustice.”

Charles Dickens, 1861

In the context of the colossal challenge posed by the urban young, we chose to focus especially on a particularly vulnerable group whose needs or even existence is commonly ignored: the street children, homeless urchins who, in increasing numbers, struggle to survive on their own in virtually all large urban area s. Concern for their cause, hitherto largely unacknowledged, is long overdue. They exist in both developing and developed countries although their problems and needs vary. Mostly aged between eight and eighteen, and overwhelmingly boys, they are condemned by the indifference of others to fend for themselves, drifting from childhood to adolescence, brutalized and increasingly alienated. Their emergence was never foreseen in any national plan. They are with us nonetheless in almost all big cities, in all continents. Latest estimates put their number at 30 million, and growing inexorably .

The conditions in which they live are little known, but have much in common with those prevailing during the Industrial Revolution in 19th century Europe. For most street children, staying alive from day to day and hour to hour means work: a hard, unending grind for a pathetically meagre return. In various ways, they all do so by scrounging, foraging, and bartering, by contributing , as economists blandly put it, to the informal sector. They shine shoes, wash cars, carry shopping bags outside department stores, sing or play instruments in buses and subways, or simply sort through rubbish dumps for objects to sell. When life itself is at stake, competition is ruthless, and stealing or fighting are unexceptional activities. Having been written off by society, many street youngsters hold its standards in contempt. Their life offers them the spectacle of conventional existence without integration into its values: proximity without participation. It represents instead a counter culture which replaces school and has a very different syllabus. For them, the street is both a brutal parent and a capricious teacher.

To survive in such an environment street children coalesce into gangs. This provides the protection and comradeship of a substitute family and an acceptable code of ‘honour’. It also meets the need for a sense of identity.

Like violence, drugs are rarely far below the surface in many neighbourhoods and represent a murderous underworld of their own. Among street youngsters, their consumption, a temporary escape from an unbearable reality, is almost universal. In some countries, marijuana is treated as a parallel currency. As drug consumers, they are often forced into becoming pushers, for selling drugs is one of only three ways, with stealing and prostitution, of ‘earning’ enough to buy the daily dose. Living where they do, street youngsters are also prime candidates for sexual exploitation.

The causes of such a disturbing phenomenon – personal, social, economic, and political – are deep- rooted, and do not lend themselves to any ready recipe for curative or preventive policies. Against a background of misery, violence and cultural breakdown, the failures of urban development and uncoordinated policies all exact their human toll.

The child is on the street, usually, because his family is in crisis. There is often only a single parent. In many households, unemployment or underemployment leads to depression, the loss of self-esteem, alcoholism, and overwhelming strain. Extreme poverty invariably robs parents of the hope, strength, and resources needed to keep their children cared for. Under the stress of physical, psychological and emotional overload, relationships deteriorate, and beyond a certain threshold, ‘home’ ceases to exist.

Paradoxically, for street children, school is often not an open door, but a further constraint. In many developing countries, schools seem to belong to a different world, remote from their everyday existence. When classes are large and competition is intense, the number of drop-outs is invariably high. Few educational authorities in the Third World can afford to give much further attention to those who fall at the first hurdle. The content of education itself is frequently unsuitable for easy absorption in the employment market.

Many street children in developing countries come from families uprooted from rural areas and attracted to the city by the prospect, or mirage, of a better life. Children are always the most vulnerable in such a change, and the first to suffer from being uprooted. In the rural community, the extended family is always there to support parents and childrearing is a collective task. As they grow older, extra hands are more of an asset than a liability. In the city, economic and social conditions are largely reversed. Maintaining a child becomes expensive. Extended families are left behind. The role of the elderly, previously so important, is reduced. Other, quite different, social causes can also produce the same final result: the offspring of prostitutes, illegitimate children disowned by a ‘respectable’ parent, the children of political detainees, handicapped children, others entrusted, in certain countries, to itinerant teachers, can all sometimes be condemned to a street existence.

Behind the drift to the cities loom still wider factors. In many developing countries, cash crops, grown for export by mechanized agribusiness, have displaced subsistence farming, leaving families with no alternative but to move to the cities, with no marketable skills or prospects of acquiring any. Disasters such as armed conflicts or drought also cause the displacement and disruption of communities.

The record of government agencies in dealing with street children is invariably poor. Most countries have an extensive safety-net of legislation to protect the child whose family is inadequate, and authorities run institutions for those in need of care if substitute families cannot be found for them through adoption and fostering. In many cases, however, such institutions serve to camouflage the real needs of the family. They have long been controversial and in practice tend to occupy an ambivalent position between the Ministry of Social Welfare and the Minister of the Interior, between protecting the child against the wide world outside and protecting society against the pre-delinquent child. The two things are very different, yet produce the same systematic exclusion and segregation.

The common lot of street children, almost everywhere, is arrest and detention in harsh circumstances. This tells us more about the real attitude of many governments to the problem than could be gathered by examining national legislation. The sad fact is that most governments are not very interested in street children. Their child-care facilities rarely make much effort to understand the deeper motivations of the child and do nothing to provide a sense of belonging.

Repressive attitudes on the part of those in authority are often compounded by bureaucracy. Ministries may be too compartmentalized, and the emergence of such new problems may point to gaps in coverage between jurisdictions. Typically, each separate ministry has far more immediate concerns on its hands than street children, and none is prepared to take overall responsibility. Departments tend to determine and shape their programmes by the available policy instruments they have, which are geared to those in families and not always flexible enough to cope with exceptions. Authorities do the minimum, and only under pressure. As for NGOs, they cannot usually fill the gap on the scale required. Having been consistently avoided, the problem has therefore to grow to huge proportions before attracting the proper attention.

Against this gloomy picture, there have always been those, in many countries, who see the issue not just in legalistic or law and order terms but above all in humanitarian terms, and who seek to provide more humane alternatives to institutional treatment. Fieldworkers, overwhelmingly from the private sector, and often with a religious background, have developed methodologies for meeting the particular needs of street children. While well aware of the deeper structural causes of the problem, they see their task as to deal firstly with the consequences, which are enough to keep them busy. They recognize that their projects can never do more than make the best of a bad job. Their calling requires seeing the young victims not as what they have become through force of circumstances, but for their own intrinsic worth.

Restoring to street children the attention of which they have been deprived requires great skill, understanding, and patience. The pioneers in the field have been visionaries passionately committed to uplifting the downtrodden and able to break through surly distrust. They are the antithesis, in every way, of the cautious bureaucrat. Whereas local authorities can supply shelter, food and other material necessities relatively easily, the crux of the matter lies rather in establishing genuine human relationships with the youngster and rebuilding his bridges with society- a task often far more difficult for the clock-watching official than for the disinterested counsellor.

Urgent cases of distress in the streets can be dealt with more thoroughly in a crisis centre, and then perhaps moved on, if there is no other solution, to a project providing residential care. The present trend, however, is rather towards the non-residential, community-based project which uses work itself, under protected conditions, as the agent of socialization. Intended for working street children who are not entirely estranged from their families, but are in danger of becoming so, this formula spreads the butter thinner, and so can cater for far greater numbers. It is being actively propounded, in particular by UNICEF, as an alternative to state-run institutions.

Most of the recommendations we have made regarding the urban young in the preceding chapter apply even more to the street children. The ICIHI Sectoral Report on Street Children also contains a series of recommendations dealing with both general and specific aspects. We wish to emphasize here that the problem is too big and complex for solutions like children’s homes and adoption schemes. What is required is a basic change in attitude towards street children by governments and communities. Local self-help projects involving the street children directly, as well as the old and the retired in each community, could go a longer way than expensive schemes which benefit only a few.

Besides the detailed recommendations contained in the sectoral report on street children, we suggest that governments:

• Take stock of the situation of street children, whether they are already faced with the problem or not. If it exists, they should recognize it, and seek a clearer appreciation of the actors involved and the forces at work.
• Recognize that street children as such are not delinquents, but only immediate candidates for delinquency if their needs are not met. In principle, law enforcement agencies should be used as sparingly as possible, as a heavy hand only serves to reinforce aggressiveness.
• Take steps to create a legal framework within which NGOs can operate, collect and disseminate data. Where appropriate, the confidentiality of information available to NGOs should be respected. Such a framework would recognize the responsibility of the State to protect street children.
• Encourage and support social development programmes to bring about changes of attitude regarding practices which negatively affect the institution of the family.

* Extend an umbrella of greater legality and protection to the informal sector in which many street children work. Shoe-shine boys, car washers, etc. can be given legal recognition, symbolized perhaps by a badge or a uniform. Their conditions of work can be improved and combined with nutrition programmes, informal learning, and recreation. Local authorities must take seriously the efforts by NGOs to organize them into co­ operatives, and not – as has occurred in some countries – greet them with derision. The positive contribution of artisans who employ street children must be acknowledged.

 

The Uprooted

“There is no sorrow above the loss of a native land.”

Euripides, 431 BC

Refugees and Displaced Persons

Throughout history, and in every part of the world, people have been uprooted by persecution, conflict or environmental disaster. What is unique at the present time is the massive scale and global nature of such movements. Over the last 30 years, on the average, 700 people a day have been forced to leave their homelands and to become refugees. The world’s refugee population now exceeds 13 million. The number of people displaced involuntarily within their own country is much greater.

International arrangements exist to provide material assistance and protection to refugees who qualify for that status according to the universally accepted definition contained in the 1951 United Nations Convention Relating to the Status of Refugees. According to it, a person is a refugee if he is unable or unwilling to be in his own country for reasons of persecution or well-founded fear of it due to his “race, religion, nationality, membership of a particular social group or political opinion” .

There are, however, tens of millions of other uprooted people in the world today whose plight is as real but whose problems are relatively ignored by the international community and the general public. We felt that it was important for our Commission to examine the different categories of these displaced people and raise public awareness of the humanitarian issues involved. Our analysis and conclusions have already been published in a Sectoral Report. •

We recognize that, in recent decades, the root causes of refugee problems have become much more complex. People flee for a series of reasons and it is becoming increasingly difficult to distinguish clearly between refugees and non­ refugees on the basis of the established criteria.

Victims of armed conflicts, for example, are not included in the definition of the 1951 Convention. Yet since World War II, the number of such conflicts, ranging from internal disturbances and civil war to undeclared wars between States, has continued to increase. Invariably, these conflicts oblige people to flee. Populations become displaced within their own countries and often spill across national borders in search of security. Understandably, some of the largest movements of refugees and displaced persons in recent years have taken place in areas of armed conflict.

Many of the world’s poorer countries are locked into a vicious circle of repression and opposition. Finding that the constitutional means of expressing their opinions are limited, opposition groups turn to terrorism or guerrilla warfare. In response, the government launches a military campaign to reassert its authority and to eliminate the opposition. The civilian population, especially in rural areas, are caught between these conflicting forces and many, if they are not killed, flee for their lives.

Communal violence is one of the most frightening forms of conflict. When the members of one ethnic, religious or linguistic group clash with the neighbouring members of another, atrocities are almost inevitable. Even when governments do not have discriminatory policies, their inability to protect their own minorities or a threatened social group can indirectly cause the flight of large numbers of people.

Environmental disasters such as drought and famine are also uprooting more and more people every year. Deforestation, desertification, rapid urbanization and ineffective agricultural policies have all played a part in upsetting the delicate balance between man and his environment. The people most affected are the poor and powerless.

The development process is just as likely to uproot people as an environmental disaster. In many developing countries, land is being systematically appropriated in an attempt to fuel economic growth. Dams, highways, mines, energy pipelines and timber reserves all require large amounts of land. Planners, politicians and businessmen often regard the traditional land users as an inconvenience and a hindrance to growth. In many cases the local inhabitants are simply told to leave their land or are forcibly evicted from it.

At the same time, a growing number of people are being uprooted as a direct result of government policies to redistribute populations from overpopulated to under­ populated regions of the country. Sometimes these policies are a response to intractable political, economic and social problems or the perceived requirements of national security.

In the developed countries elaborate methods have been established to determine population distribution and to control the movement of migrants. Few governments in the developing countries have the resources to establish such sophisticated controls. Their administrative structures are often weak and their enforcement agencies operate with a high degree of autonomy. Decision-makers are often looking for quick solutions to complex problems. Compulsory relocations appear to offer a way out.

The urbanization of the developing countries has accelerated rapidly in the last forty years. Much of the increase in the urban population is a result of massive movements of people from the countryside to the towns, prompted by indebtedness, land exhaustion, and the neglect of rural areas in official development plans. In some cases, large numbers of people from the countryside flock to cities to escape armed conflicts or guerrilla activity.

Uncontrolled urban expansion places a great strain on public services in addition to creating serious social and political problems. Confronted with these problems, many governments have found it imperative to redistribute the rural population. Throughout Africa, Asia and Latin America, governments have resorted to periodic urban removal campaigns, rounding up the unemployed and underemployed, and sending them to work in the countryside.

In the rural areas themselves, people have also been uprooted. Villagization programmes have been introduced, concentrating scattered farmers into planned villages and state farms. When people are brought together, it is argued, scarce resources can be allocated more efficiently and equitably.

Serious humanitarian issues are raised by such official relocation programmes. None would deny the need for governments to take measures for containing the severe consequences of rapid urbanization and rural impoverishment. But relocation programmes have often been implemented in a coercive and poorly planned manner. What is more, they do not appear to have been particularly successful. Urban evacuees have often made their way back to the cities. Villagization programmes have failed to produce significant increases in agricultural output. Resettlement schemes have been the cause of considerable suffering, amongst both the settlers and the local populations of the resettlement areas.

Humanitarian responses to the plight of people uprooted by official relocation programmes are especially difficult to formulate. The motivations for forced relocations can often be understood, but can the methods used be endorsed? In situations where there appears to be no alternative to a controlled population movement, there is a case to be made for the involvement of external humanitarian agencies. Such a policy of constructive engagement could at least open up relocation programmes to impartial observation and ensure that they are carried out humanely and effectively. But the ambivalent attitude of many agencies to such programmes does reflect a very real dilemma: is the use of compulsion acceptable even in cases of extreme national emergency, and under what circumstances can the international community support such a policy?

The victims of mass expulsions are also inadequately protected and assisted by the international community. In recent years, a number of governments have attempted to resolve pressing political and economic problems by expelling unwanted sections of the population. Ethnic minorities, political dissidents, and migrant workers have been the most frequent targets of such exercises. This relatively neglected subject received the special attention of our Commission and is dealt with in greater detail later in this chapter.

The plight of all these new categories of uprooted people calls for urgent initiatives at the international level. People who are displaced within their own country are a particularly vulnerable group. Their rights are fully recognized neither in national nor international law.

We recognize the difficulty involved in regulating international law and practice in regard to matters which are essentially within the domestic jurisdiction of States. We also recognize that the internationalization of internal problems can sometimes further aggravate the situation and possibly cause more harm to the victims. It seems nonetheless feasible and desirable to elaborate internationally recognized standards of treatment for the millions who are victims of circumstances beyond their control. In situations where direct government actions contribute to displacement of large numbers of people, it should be possible to establish a code of conduct based on humanitarian principles for the guidance of governments.

The problem of refugees and displaced persons is afflicting many developing countries. There are now 25 countries in Africa, Asia and Latin America with refugee populations in excess of 80,000. In a few, the numbers run into hundreds of thousands. Most of these countries are poor. Refugee influxes and internal displacements impose a massive burden on limited government revenues and overstretched administrative structures. The burdens on ordinary people are even more significant. Impoverished newcomers compete with their local hosts for scarce resources such as food, water and fuel. Deforestation, soil erosion and a deterioration of public services are all likely to take place when an already poor area suddenly has to support a much larger population. Tension and conflict can easily arise between displaced people and host communities.

At the international level, mass displacements can reinforce political tensions and obstruct regional co-operation. Under international law, the granting of asylum is a humanitarian, non-political act. In practice, it is not always so perceived. Moreover, refugees are not only the victims of local and regional conflicts, but are sometimes also active participants in them. Governments are becoming increasingly reluctant to practise an ‘open door’ policy and to grant asylum generously. The international community has tended to perceive mass displacements as an inevitable deviation from the norm. But it is now clear that refugee movements are the product of some very profound, structural problems confronting the contemporary world. The existing legal and organizational framework of refugee protection and assistance needs adjustment to this new reality.

Within the United Nations, two agencies have specific mandates to take care of defined categories of refugees: the Office of the United Nations High Commissioner for Refugees (UNHCR) which was established to protect and assist refugees and to promote permanent solutions to refugee problems and the United Nations Relief and Work Agency (UNRWA) which was established to assist and provide relief to Palestinian refugees within a defined geographic area.

When UNHCR was founded in 1951, the number of recognized refugees was less than two million. Most of them lived in the more prosperous countries of the world. Now there are over six times as many, the vast majority of them in the poorer States. Similarly the number of Palestinian refugees has continued to increase since 1948 and the problems faced by UNRWA have become more complex. A second generation of Palestinians has now been born in refugee camps in various countries of the Middle East. Hundreds of thousands of Palestinians have, thus, grown up with the despair and deprivation of camp life.

There are serious political and financial implications arising from this situation. Both UNHCR and UNRWA have had funding problems in recent years. The finances available are swallowed up by expensive relief operations and care and maintenance programmes. The inter-governmental and voluntary agencies working with refugees have, therefore, not been able to concentrate their resources on finding lasting solutions to refugee situation s.

Refugee protection is weakening, as both industrialized and developing States grow tired of giving sanctuary to large numbers of distressed foreigners. A few countries have forcibly returned refugees and asylum-seekers to their own country, in clear violation of international law. Many more have introduced measures specifically designed to deter refugees from claiming asylum. Similarly, the harassment of refugees and military attacks on their settlements are growing in scale and frequency.

States cannot be forced to ratify conventions or observe international laws designed to protect refugees. Humanitarian organizations are constrained by the realities of political power. Under certain situations they can improve the material well­ being of refugees and offer them a degree of protection they might not otherwise enjoy. Exceptionally they might even help to resolve a situation which is creating refugees. But ultimately, their ability to influence the behaviour of States is quite limited. Indeed, inter-governmental organizations are often open to pressure from States in pursuit of national political or strategic interests.

There are many ways in which the protection and assistance of refugees could be strengthened. The principles of refugee law must be more widely disseminated, especially amongst the government officials and security personnel who come into contact with refugees and asylum-seekers. The specific needs of refugee women and children and of refugees who are subject to armed attacks could be recognized in United Nations declarations and special measures taken on their behalf. There is a strong case to be made for a critical re-examination of the United Nations Refugee Convention. Can it adequately meet contemporary needs and situations? Should the victims of conflict, turmoil and environmental disaster be given inter­ national legal recognition like the victims of persecution?

As far as assistance is concerned, there is a need to see whether the resources available are being equitably distributed amongst the countries giving sanctuary to large numbers of refugees. Accurate censuses of refugee populations are required, and their needs more rigorously and scientifically assessed. Governments which receive large amounts of relief aid must be encouraged to implement programmes enabling refugee communities to become self-sufficient. The resilience and innovative ability of refugees is often underestimated by aid agencies. The fact is that an overwhelming majority of refugees survive without international aid. They integrate into the new society more easily on their own in the developing countries. Such ‘spontaneous integration’ should be encouraged and facilitated through appropriate projects which take fully into account local conditions and traditions.

In   recent   decades, ambitious   schemes of   resettlement of refugees in countries outside their region have been implemented.

While the generosity of receiving countries is commendable, it is important that resettlement within the region rather than across the continents is encouraged. Instead of spending vast sums to integrate refugees in an entirely alien social environment, donors would do well to assist more generously countries within the region to assimilate them.

Most refugees would like to go home, but will not do so until the conditions which prompted them to leave have changed. In many cases, they are deterred from returning by the daunting prospect of establishing a livelihood and reintegrating into their own society. External assistance has a vital role to play in promoting the option of voluntary repatriation. The assistance currently given to returnees is often inadequate. Food aid, for example, is provided for a very limited period. Much more ambitious programmes, designed to rehabilitate the infrastructure of returnee areas and to provide new income-earning opportunities, are called for. With aid agency personnel stationed in these areas for an adequate period of time, the security of returnees would also be reinforced.

The circumstances which force people to abandon their homes and which prompt governments to uproot their citizens do not spring up overnight. They develop gradually and are, therefore, foreseeable. Yet the international community has hitherto failed to establish an effective early warning system which would enable contingency planning and anticipatory action to be taken.

We need to know much more about the dynamics of mass displacement. On the basis of that knowledge, the international community should be able to establish a means of collecting, sifting and analysing information relevant to potential refugee movements. Given the very rapid development of communications and computer technology, a new early warning facility should have a substantial forecasting potential.

At the same time, we must recognize that preventive and anticipatory action is more often obstructed by political than technical obstacles. Governments have the ultimate responsibility for the actions; or failures to act, that cause refugee movements.

In seeking change at the political and governmental levels, the role of the public cannot be over-emphasized. Throughout the world, ordinary men and women have demonstrated in recent years their concern for the victims of famine in Africa. Such concern must be directed, not simply at the collection of money for relief, but at the governments and decision-makers who shape the policies which create or aggravate refugee problems instead of solving them.

In conclusion, we wish to emphasize the need for elaborating international humanitarian standards and strengthening the assistance network at national and international level for those groups of uprooted persons who do not clearly fall within the category of refugees as defined by existing international instruments. We recognize that this relatively unexplored field does not lend itself easily to definitive recommendations and suggestions without a more thorough study. We urge governments, inter-governmental agencies and non-govern­mental organizations, as well as scholars and experts to undertake such studies and to look into practical ways and means to alleviate suffering and promote solutions to the problems. There are now tens of millions of internally and externally displaced persons and their numbers may well increase if timely action is not taken.

We are of the opinion, in so far as refugees as defined by existing instruments are concerned, that, in the field of protection:

• It is essential to elaborate further the concept and State practice relating to asylum. The international community must support this process giving positive expression to the notions of burden­ sharing and human solidarity. States should be dissuaded from introducing measures designed to deter individuals from seeking asylum. Likewise, it is essential that governments deal with asylum applications quickly, thoroughly and in a context where humanitarianism prevails over political considerations. The inter- and non-governmental agencies concerned have a vital role to play in assisting governments in this regard and in exerting pressure when humanitarian principles are not fully respected.
• A set of minimum humanitarian standards applicable to refugees and asylum-seekers should be developed and the international agencies should monitor and encourage their observance by governments and local communities.
• The physical security of refugees in situations of conflict must be strengthened by governments and the international agencies should play an active supervisory role.
• International humanitarian agencies must enjoy free access to refugees and in situations of tension or conflict the possibility of stationing impartial ‘humanitarian observers’ should be explored.

Regarding material assistance, we are of the opinion that:

• Available sources must be equitably distributed among the countries receiving large numbers of refugees, and objective humanitarian rather than political criteria should be applied by donors.
• Accurate censuses of refugee populations are required and their needs should be more precisely accessed.
• Emergency relief assistance should be provided for a pre­ determined and limited period and income-generating projects as well as assistance measures designed to promote self­ sufficiency should be encouraged.
• The concept of refugee camps and rural settlement needs to be radically Beyond the emergency period when they are required, camps have serious disadvantages. They rarely become self-sufficient. They also produce social tensions and constitute ‘human islands’ which isolate refugees from their local hosts while creating open-ended dependency upon external assistance.
• Criteria of material aid to refugees should be standardized in terms of nutrition, health care and other subsistence items. Donors should provide aid which corresponds to real, identified need s as well as the habits and traditions of the recipients.

In terms of durable solutions, we firmly believe that: 

• Voluntary repatriation as the most suitable Calls for a more vigorous approach on the part of international organizations and governments while respecting scrupulously the voluntary character of repatriation efforts should be made to create a climate more conducive to return. It is important in this connection to strengthen aid programmes for returnees. Such programmes should be of longer duration than a few months and should be designed to promote self-sufficiency.
• In the case of local settlement, the concept of ‘spontaneous integration’ or self-settlement needs greater attention and encouragement than has hitherto been accorded to it. It is the preferred option of a majority of refugees and calls for better understanding of local conditions by the aid agencies. They should call on experts possessing knowledge of the customs, habits, traditions and historical background of refugees and local host communities, in order to develop appropriate assistance projects to encourage and facilitate self-settlement.
• Finally, with regard to the resettlement of refugees in a third country, the possibilities of resettlement within the region or the continent should be vigorously pursued. Where necessary, donors should provide extra assistance to the countries and the local communities to facilitate integration and self-sufficiency of refugees. Inter-continental migration should be pursued only when all possibilities of resettlement within the region have been fully explored and exhausted.

 

Statelessness

” Citizenship is man’s’ s basic right for it is nothing less than the right to have rights.”

 Earl Warren , 1958

In a world where the nation state assumes increasing importance, nationality is an essential attribute of a person’s material and moral well-being. Normally every individual has a nationality, and one only. In reality, some people have several nationalities, while others – much more numerous – have none. They are stateless. No State considers them as one of its own. There are hundreds of thousands of people in this predicament spread across the globe, although exact figures are difficult to determine. The subject of statelessness has received little detailed attention from international organizations.

Some people are born stateless, others become stateless in the course of their lifetime. Certain countries confer nationality according to the principle of birth within national boundaries (Jus soli), others confer it according to filiation (Jus sanguinis). With regard to statelessness after birth, there may be several causes. An individual may lose his or her nationality without acquiring a new one as a result of an extended stay abroad, or due to the ceding of territory, or for some perceived disloyalty, or as a punishment, or simply through marriage to someone of a different nationality. In this last case, it is usually women who lose their nationality. From a legal point of view, statelessness may be considered as the faulty expression of national legislations on the question of nationality and the principle by which the law of each State fixes the acquisition, attribution or loss of nationality.

Statelessness is not merely a legal problem. It is also a consequence of migrations, of movements of population, of forced exodus and of various forms of persecution. The frequency and growing magnitude of these problems in recent years explains, to a large extent, the renewed interest in statelessness, and particularly in de facto statelessness.

De facto stateless people, as distinct from de jure stateless people, do theoretically have a nationality. But they have lost all real links with their country of origin and no longer have its protection, either because the country in question refuses to afford assistance and protection, or because the people in question have renounced it. Their situation is similar to that of refugees who, while keeping their nationality, no longer benefit from the effective protection of their State. Stateless people are not , however, all refugees, and, conversely, refugees are not all stateless. In practice, the distinction between de jure and de facto statelessness is not always evident and this has sometimes led to the use of the terms ‘de jure non-protected persons’ and ‘de facto non-protected persons’, or ‘technically stateless persons’ and ‘politically stateless people’, in order to demonstrate the origin of non-protection.

As de facto stateless persons, there are also those who have never had a nationality. In particular, the case of many Palestinians serves as illustration. There are· also nomads and gypsies who live on the fringes of the nation state and who, as it were, embrace statelessness voluntarily. Their situation raises particular problems which the Council of Europe, for example, is trying to solve. Its recommendation of 1983 calls on States to retain certain criteria, such as the country of origin of immediate family or of frequent periods of residence, in order to facilitate their membership of a State and to allow them to travel freely.

From a humanitarian point of view, statelessness, whether de jure or de facto, is a major preoccupation. The stateless are part of those unwanted people who are refused right of entry to countries or who are turned back at borders according to political or economic circumstances. If they are taken in, they often live in uncertainty for many years. Statelessness is frequently transmitted from one generation to another. Nationality is not only the right to a passport and material advantages. It also confers upon the individual an identity and the sense of belonging to a community – elements without which a person remains vulnerable and uprooted.

As a result of events during the inter-war years and the Second World War, the Universal Declaration of Human Rights proclaimed the right to a nationality as a fundamental human right. Article 15 states:

1. Everyone has the right to a nationality.
2. No-one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality.

But much effort is still required before this right is fully recognized. In recent decades, the international community became aware of the problem of stateless people at the same time as it was preoccupied with the fate of refugees. However, the two issues were dealt with separately by the United Nations. It is now becoming increasingly apparent that, in practice, the state less are less protected than refugees.

The 1954 Convention of the United Nations relating to the Status of Stateless Persons, formulated along the same lines as the 1951 Convention relating to the Status of Refugees, confers a special status on the stateless and guarantees them minimum standards of treatment. Stateless persons are thus granted the same rights as nationals in certain areas: the right of access to courts of law, industrial and intellectual property, education, assistance and social security. For other rights and activities, they should be granted treatment no less favourable than generally accorded to aliens as regards movable and immovable property, the right of association, the right to engage in wage­ earning or unsalaried employment, the right to practise a liberal profession, the right to housing, education up to and beyond primary level, and freedom of movement. The Convention also requests States to issue to stateless persons identity papers and travel documents and to take measures to facilitate their assimilation and naturalization.

The treatment of stateless persons and refugees has many similarities. There are, however, certain differences which make statelessness a less advantageous situation than that of refugees. In the event of illegal entry or presence, only refugees are exempt from penalties. They are also guaranteed freedom from expulsion or forcible return to a country where they risk being persecuted. However, the 1954 Convention offers no more than a statutory arrangement for stateless persons. It does not offer a definitive solution. It does not look into the problem of nationality which is, after all, the only means to ensure true and lasting integration of the stateless into a national community.

In this sense, the 1961 Convention on the Reduction of Statelessness took a step forward by attacking the problem at its source. Stateless children should be granted the nationality of the State in whose territory they are born. This would avoid perpetuating statelessness from one generation to the next. If all countries were to conform to this principle, namely that of jus soli, there would be far fewer stateless persons. But this is hardly the case. Many countries apply the rule of jus sanguinis. They ensured that their own interests were preserved in the 1961 Convention. The co-existence of both principles weakens the efficacy of the Convention in relation to its avowed aim.

The Convention also seeks to avoid cases of statelessness which are the result of voluntary omission, of a change in civil status, of the stripping of nationality or of the transfer of territorial sovereignty. The Convention essentially ensures that no person shall lose his or her nationality without a guarantee of acquiring another. However, even here, the prerogatives of sovereignty have been assuaged, and exceptions introduced which largely reduce the scope of the principles in question. This is certainly the case of persons who may lose their nationality as a result of extended residence abroad. Others may be deprived of nationality if, for example, they represent ‘a serious threat’ to the ‘essential interests’ of the State. These notions are not spelt out in more detail, and their interpretation often results in injustice and arbitrary measures.

De facto statelessness has been particularly overlooked in international conventions. Protection under the 1954 Convention is only aimed at people who have obtained status as stateless persons. Other than those who also have refugee status, and thereby enjoy more favourable conditions, the majority of de facto stateless persons are without protection. Even in war time when the number of refugees and stateless persons increases, the 1977 Geneva Protocols expressly qualify as protected persons only those stateless persons considered as such before the outbreak of hostilities, namely the de jure stateless.

A recommendation included in the Final Act of the Conference on the Status of Stateless Persons invites the Contracting States to extend the treatment accorded by the Convention to de facto stateless persons who have renounced the protection of their own State. Among the resolutions included in the Final Act of the Conference on the Reduction of Statelessness is one which recommends that persons who are stateless de facto should be treated as stateless de jure to enable them to acquire an effective nationality. But these are only recommendations which are in no way binding upon States.

Despite numerous compromises and concessions, the Conventions on Statelessness have not received the number of ratifications one might have hoped for: only 35 States have ratified the 1954 Convention and 13 that of I961.

To the weakness of standard-setting, one must add negligence by existing institutions. Stateless persons are almost alone therefore when facing the State. They frequently leave their country without any resources or valid identity papers. They may either be forcibly returned, or admitted temporarily and then rejected and escorted to the frontier. They may be mistreated – without any international organization offering assistance. The Convention relating to the Status of Refugees was able to benefit from the establishment of the Office of the United Nations High Commissioner for Refugees (UNHCR) which was entrusted with its supervision and application. UNHCR has the mandate to assist refugees, ensure their legal protection and follow up with the authorities of host countries. There are no such mechanisms for stateless persons.

The 1961 Convention did foresee the establishment within the framework of the United Nations of a body to which persons claiming the benefit of the Convention might apply. UNHCR was so designated by the UN General Assembly (Resolution 3274 (XXIX) of 10 December 1974 and Resolution 31/36 of 30 November 1976). But no mention is made of UNHCR’s competence with regard to the application of the 1954 Convention and to measures of assistance towards those who have not yet been deemed stateless persons. Moreover, UNHCR, which could in practice go beyond conventional limits, has remained somewhat indifferent when it comes to the fate of the stateless. The term stateless person hardly ever appears in UNHCR publications – a fact which, together with the doctrinal vacuum in this particular area, only serves to heighten general indifference towards a problem which should, rather, inspire in human terms the same compassion as that shown to refugees.

The solutions provided so far by the international community with regard to the problem of statelessness have been found wanting and inefficient. They have been formulated more from the point of view of a State’s prerogatives and sovereignty than of individual human rights. It is this imbalance which today requires correction through a new approach which takes into account the many dimensions of the problem. Action must be aimed at prevention and elimination.

With regard to nationality, the law needs to be strengthened and better defined . The 1961 Convention does not express an international consensus. Few States (only 35 of them) participated in the Conference and only 13 have ratified the Convention. The elaboration of a new instrument might allow the emergence of a consensus and a new standard which, in any case, would serve to influence national legislation.

The 1961 Convention was a compromise between those countries which, in tum, supported either jus soli or jus sanguinis. Ideally, any future international instrument should go beyond compromises to a comprehensive approach to the elimination of statelessness. It would be advisable, for example, to adopt a single criterion for the acquisition of nationality: that of jus soli. The 1969 American Convention on Human Rights, for example, recognizes the right of any person to acquire the nationality of the State in whose territory he or she was born. The ability to deprive a citizen of nationality should be forbidden absolutely if it leads to statelessness. There are other measures that can be taken against those who go against national interests. A State should not turn away its own citizens, or ex-citizens who have no other nationality.

In the case of ceding of territory, States must ensure that the inhabitants do not become stateless. They might give the inhabitants, for example, the right to choose between the nationality of the successor or the predecessor State.

The best way to eliminate statelessness is to allow stateless persons to acquire a nationality. States should envisage advantageous ways of naturalization and distinguish them from those usually offered to foreigners. In the event of a country of residence not granting its nationality to a stateless person, the United Nations should look into ways and means to resolve the problem. It is up to the United Nations to initiate and encourage the international community to be more sensitive to the problem of statelessness.

Mechanisms to protect and assist stateless persons should be established urgently. It is possible, for example, to envisage, through a protocol to the 1954 Convention, the creation of a High Commissioner for Stateless Persons. However, it would be more appropriate to confer this task upon UNHCR. This would be a way not only of gaining from its experience in the field of protection, but of saving time, money and energy. UNHCR already has been given by the UN General Assembly the functions foreseen in the 1961 Convention. It should also monitor the application of the 1954 Convention. The mandate of UNHCR is sufficiently flexible. In the same way that it is charged with the task of protecting refugees and displaced persons who do not fall under the definition of the I951 Convention, it should be empowered to extend its activities to all stateless persons, de jure or de facto. It is important to recall in this connection that UNHCR has on-going activities not only in countries which are party to the Convention, but also in many which have not ratified it.

We believe it would be helpful if UNHCR could assume the following tasks:

• Promote the ratification of international Conventions relating to
• Monitor the application of Conventions and report to the General Assembly on the state of application of Conventions and of its activities in favour of stateless
• Collect all possible information concerning stateless persons, their number and whereabouts. The task should be all the easier in that UNHCR already undertakes this for refugees and that within national it is often the same department which deals with refugees and stateless persons.
• Co-operate with governments with a view to improving the condition of stateless persons and reduce their number through the adoption of permanent solutions, through appropriate inter­ governmental
• Assist stateless persons in administrative matters and inform them of their
• Raise public awareness of the problems of stateless persons and promote the reduction and elimination of statelessness.
• Include the needs of stateless persons in its public information and fund-raising

The 1961 Convention foresees the jurisdiction of the Inter­national Court of Justice in the event of disputes concerning the interpretation or application of the Convention. But the prerogative of seizing the Court is reserved for States. It would appear timely to set up an international authority to which stateless persons themselves could apply in order to uphold their rights. Nationality is not a simple affair of state. It is also a human right.

Statelessness is a source of political and socio-economic tension which affects the country of origin, the country of residence and neighbouring countries. Regional organizations should become more involved in the problem and contribute to its solution through initiatives adapted to local conditions. Regional mechanisms to control human rights could also be used to ensure respect for the right of every individual to a nationality and related rights such as that of choosing one’s place of residence, of freely entering one’s own country, or of not being expelled from it.

 

Mass Expulsions

”Everyone is quick to blame the foreigner.”

Aeschylus, 463 BC

Mass expulsions of foreigners as well as unwanted nationals are not just a modem phenomenon. Between the 15th and 18th centuries, religious turmoil in Europe led to the exclusion of minority groups such as French Protestants, Spanish Muslims and Austrian Jews. In the first half of this century, territorial realignments and the growth of nationalism resulted in widespread displacements of populations. After the Second World War, the redrawing of the political map in Europe and the Middle East, and the process of decolonization in other parts of the world, inevitably produced a succession of mass expulsions. Most recently, developing countries confronted with intractable economic and political problems have resorted to the expulsion of ‘scapegoat’ groups, such as refugees, ethnic minorities and illegal immigrant workers.

Despite the long history of mass expulsions, which have meant deprivation and death for hundreds of thousands of people and caused major social, economic and political upheavals, very little has been done at the international or even regional level to tackle the issue. There is no organization, either within or outside the United Nations system, with a specific mandate to deal with the problem. There has been no concerted attempt to formulate an international instrument or even a code of conduct to prevent or regulate mass expulsions. Although the expulsion of undesirable foreign individuals is considered to be within the sovereign legal prerogative of States, a number of jurists agree that mass expulsions of nationals or aliens can be considered unlawful under international law: they are arbitrary in their effect, they violate human rights, and cause unnecessary hardship to large numbers of innocent and vulnerable people. Of course, the governments which implement mass expulsions claim that they have a right to do so.

Economic justifications are commonly uppermost in official statements on this issue. Migrant workers from developing countries, perhaps the most regular victims of mass expulsions 10 recent years, are blamed for taking jobs that should be held by a country’s own citizens. It is argued that migrant workers, especially those who enter a country in an irregular way, place undue pressure on public services in times of austerity, and aggravate balance of payments crises by sending remittances back to their own country.

Some migratory movements result in the establishment of settled alien communities. Business communities, sometimes termed ‘middlemen minorities’, have repeatedly been subject to expulsion. These communities commonly dominate the trading and commercial sector of their adopted country, and are set apart from the rest of the population by their race, religion or nationality. They usually retain an orientation towards their country of origin which, combined with their economic success, isolates them from the host community and renders them liable to charges of disloyalty and dishonesty.

Other categories of migrants have been subject to expulsion in recent years, although not in such great numbers as migrant labourers and settled traders and entrepreneurs. Groups of environmental refugees, forced to flee disasters such as floods, earthquakes, drought and famine, have occasionally been expelled from States which claim not to have the resources to care for large numbers of distressed foreigners. Even genuine refugees, victims of conflict or persecution, have been subject to mass expulsions from countries which regard them as an economic or political liability. In many recent cases of mass expulsion, economic justifications have been advanced by governments to disguise their real, political motives.

 

Four related sets of political motives for mass expulsion can be identified, in which both domestic and international considerations feature. First, expulsions result from a desire to find convenient scapegoats for a government’s policy failures. Second, they have been instigated during periods of political unrest, when minority groups represent a perceived threat to national security. Third, such minorities are vulnerable in the run-up to elections, when ruling parties attempt to maintain power by making dramatic populist gestures. Finally, expulsions are used in the course of international disputes, to humiliate or create practical problems for rival States.

But experience suggests that mass expulsions cause a great deal of needless suffering and seldom achieve their intended or stated objectives. In fact, they frequently prove to be counter-productive.

Economic dislocation is common in the wake of large-scale expulsions. The departure of migrant workers can leave major gaps in the labour market without significantly reducing unemployment amongst nationals. The disruption of commerce may also occur, especially in countries where expelled minorities have special skills or play an important role in the trading or manufacturing sectors.

Expulsions can easily provoke conflict between neighbouring States, impeding efforts to encourage regional co-operation. There is a constant danger that a State receiving large numbers of expellees will take reprisals, leading to a further deterioration of relations, increased spending on defence, and a greater risk of military conflict.

Receiving States are confronted with enormous problems on account of mass expulsions. In the short term, they have to arrange for the reception and rehabilitation of the expellees, who often arrive without resources and in a state of destitution. In the longer term, receiving States have to deal with the prospect of increased unemployment, pressure on public resources and competition for land. The return of disappointed and frustrated emigrants is also a source of social and political frictions, especially when they have been accustomed to a higher standard of living in another country. But it would be misleading to suggest that the consequences of mass expulsion are inevitably negative, especially in the longer term. Critics of migrant labour systems have long argued that the skills and energy of migrant workers should be used productively at home rather than contributing to growth abroad.

Although there is no specific international mechanism to deal with the problem of mass expulsions, it would not be desirable to establish a new office or to revise the mandate of an existing agency to fill the gap. However, it would be appropriate to designate an agency to forecast mass expulsions, monitor them and promote preventive measures. Despite its specific mandate and limited means, the United Nations Disaster Relief Office (UNDRO) has been considered the appropriate inter-governmental body in the United Nations system. Of course, other agencies – UNICEF, the World Food Programme, the International Labour Office and the United Nations High Commissioner for Refugees – have an important role to play, as does the Red Cross and the voluntary agencies. Co-ordination between them and collective assistance to the designated body would be vital.

International legal responses must also be strengthened. The expulsion of nationals constitutes an unlawful act. As for foreign nationals, their mass expulsion, as distinguished from expulsion of individuals, should be subject to closer international scrutiny. The onus is clearly on the expelling State to avoid such action if possible, to justify the instigation of expulsions when they take place, and to give due regard to the human rights of the group targeted for expulsion. Some progress has recently been made in this direction. In 1986, the International Law Association produced a Declaration of Principles of Inter­ national Law on Mass Expulsion, which could serve as a useful basis for further discussion and action by the international community.

Some forms of mass expulsion may prove difficult to eliminate. While States continue to make use of disappearances, detention without trial and torture, they are unlikely to eschew the relatively mild remedy of mass expulsions in their attempt to solve difficult political and economic problems.

But like so many other forms of mass displacement, the conditions which lead States to implement mass expulsions do not spring up overnight. A government which pursues a laissez­ faire immigration policy during a period of economic growth cannot expect large numbers of migrant workers to pack their bags and leave voluntarily as soon as recession sets in . A country which benefits from the entrepreneurial activities of a minority group cannot expect to deprive that group of its economic and political influence. States must therefore be sensitized to the need for foresight, long-term planning and due respect for the rights of minorities whether they be foreign or national.

The international community must look for ways of anticipating and preventing mass expulsions. The United Nations system in particular has a major role to play.

In this context, we are of the view that it would be useful if the United Nations would:

• Utilize its fact-finding role to investigate and clarify the issues involved in potential mass expulsion situations.
• Monitor mass expulsions and ensure respect for fundamental human
• Use its ‘good offices’ to relieve tensions between the expelling and receiving
• Help to co-ordinate the act1v1t1es of governmental, inter­ governmental and voluntary agencies both before and after a relief programme has become

We urge the international community to support the United Nations in this task by providing the assistance required for the victims of mass expulsions to be returned to and resettled in the receiving State in conditions of safety and dignity.

We believe that the protection of people subjected to mass expulsions could be enhanced by developing a legal instrument or a set of principles governing their treatment. The 1986 Declaration of Principles of International Law on Mass Expulsion , of the International Law Association just mentioned , could provide a suitable starting point. Recognizing that mass expulsions can, in certain circumstances, be considered lawful, the international community should take full account of Principle 17 of this Declaration which states: ‘Mass expulsion of aliens. . .must not be arbitrary or discriminatory in its application, or serve as a pretext for genocide, confiscation of property or reprisal. The power of expulsion must be exercised in conformity with the principles of good faith, proportionality and justifiability, with due regard to the basic rights of the individuals concerned.’

 

The Neglected

Indigenous Peoples   

“It is natural anywhere that people like their own kind, but it is not necessarily natural that their fondness for their own kind should lead them to the subjection of whole groups of other people not like them.”

Pearls. Buck, 1943

From the polar reaches of Scandinavia to the equatorial forests of Brazil, from the deserts of Australia to the mountains of India, indigenous peoples are linked by their common needs and problems. There are 200 million of them, living on all continents, both in rich as well as poor countries. They have a common cause which transcends ideological and national frontiers and demands humanitarian action.

Whether they are called indigenous, autochthonous or tribal people, First Nations or Fourth World, there is a growing awareness about these peoples. They are the descendants of populations who inhabited a territory at the time when persons of a different culture or ethnic origin arrived there from elsewhere and, by conquest or settlement, reduced them to a non-dominant or colonial condition.

Indigenous peoples are often nomadic herders, hunters, or shifting cultivators living in sparsely populated regions of the world – in forests, deserts or mountains. There they have co­ existed with the environment without harming it and they depend upon it for their livelihood and culture. Even though many of them are self-sufficient, their traditional economic activities and physical isolation have made them particularly vulnerable to powerful political and economic forces encroaching on their societies. Not all indigenous peoples, however, are isolated herders, hunters or cultivators. Increasingly they live and work in cities and relate in varying degrees to the dominant society. Notwithstanding their diversity and geographic distance, indigenous peoples share common historical experiences and problems.

Indigenous peoples, like oppressed minorities, are subjected to discrimination sometimes bordering on racism. Their languages, religions and cultures are often ridiculed as ‘primitive’ by the dominant social groups. Degrading racial stereotypes directed towards indigenous peoples circulate unchallenged and are sometimes encouraged by governments. Many are excluded from government and senior professional jobs. A higher proportion of indigenous peoples in all countries are unemployed and, if working, employed in low-income jobs. Pressures of modernization and development have made them more vulnerable, socially and physically. They suffer comparatively poor health and have limited access to health care services. They are victims of discrimination in housing and education. When they do have access to education, it is normally in the official language of the country and unrelated to indigenous life and culture. Indigenous peoples are invariably placed last in national hierarchies whether they form a majority of the population, as they do in Guatemala and Bolivia, or a small minority as they do in Brazil and Finland.

At the core of indigenous culture is their relationship with the land. They share a world view which incorporates as its fundamental principle a custodial attitude to land and its natural resources. Indigenous peoples regard the land as a living entity entrusted to them for safe-keeping and for passing on intact to future generations. It is anathema to indigenous peoples that land can be treated as a commodity, to be bought and sold, exploited and abandoned. Governments, however, tend to regard indigenous values and farming methods as outdated and inappropriate in the modern world even though the agricultural practices of indigenous peoples have proved the most successful and environmentally sound form of land usage in fragile ecological systems.

In recent decades, the traditional territories of indigenous peoples have been subjected increasingly to incursions. An ever-growing demand, particularly from industrial nations , for natural resources has spurred a global search for untapped reserves. Once thought of as barren wastelands of little economic value, the unexploited territories of indigenous peoples have been identified as areas of abundant timber, minerals, petroleum and water. In the name of development, forests are cleared, the earth is mined, and waterways are dammed, rendering indigenous lands uninhabitable and forcing the occupants to leave. Often without clear legal title in the modern sense to the land they occupy, and with little political influence, indigenous peoples are unable to stop these incursions. Thus their alienation from the land which began with invasions and colonization has continued unabated.

The injustice of the exploitation of indigenous peoples’ land is also clear from the fact that, despite the enormous wealth it generates, little is returned to them. Even where governments have guaranteed reserves for indigenous peoples, these have generally not included rights to the natural resources of the land. In some countries there may be a limited protection of sites of religious or cultural importance, but governments retain the final authority over whether resources will be extracted from the land and the conditions which will apply. And because of indigenous peoples’ precarious land rights, fair compensation for their land and its resources has not been forthcoming from governments and transnational corporations.

Invasions of indigenous peoples’ land are made in the name of economic development and the will of the majority, but they rarely bring higher standards of living and other material benefits to the inhabitants themselves. Instead, national development, as presently imposed on them, is often causing landlessness, impoverishment and long-term degradation of the environment on which they depend. Adequate social and environmental impact studies to assess the likely effects of development projects on indigenous peoples are rarely conducted. Benefits could accrue if they were consulted by the development planners and given some control over the implementation of major projects. But in most cases, they are excluded from the development process.

Historically, the most extensive use of indigenous peoples’ land has been government-sponsored colonization programmes. These open the territories of indigenous peoples to poor or landless peasants from more densely populated areas, turning indigenous peoples into minorities in their own territories. Moreover, large numbers of people unfamiliar with the often fragile environment where indigenous peoples live, can irreparably damage the land for all. Recent colonization programmes, under the guise of economic development, have attracted substantial funding from multilateral development banks. However, they have been largely unsuccessful because they failed to take into account the practical knowledge and wisdom that indigenous peoples have gained through the generations. Unsuitable development measures are often blindly imposed without consulting the traditional owners. Consequently, both resettled peasants and indigenous peoples are made victims of preventable policy mistakes.

Indigenous peoples are also victims of military activities and defence strategies in a number of countries. Their lands are used for military exercises, nuclear and other weapons tests and for the stationing of bases. These activities have undermined indigenous economies, degraded the environment, forced them to move in many cases, and caused grave hazards to their health. Secessionist movements, sometimes exacerbated by arbitrary boundaries established by colonial powers or by refusal of States to grant autonomy to indigenous peoples, have also brought about war and violence. Indigenous territories have often suffered internal ·colonization at the hands of governments which fear secessionist threats. In other cases, genocidal solutions have been used by many governments to resolve what is essentially a humanitarian issue. Whole communities of indigenous people have been brutally massacred and hundreds of thousands have fled their homelands to escape barbarous killings by national armed forces. Peoples straddling frontiers are particularly vulnerable to inter-state or civil conflict.

Often when indigenous people are forced to leave their land, they move to cities in search of work. But when they leave their largely self-sufficient and economically self-reliant traditional communities, they are profoundly transformed. Upon arrival in the cities, they experience severe housing problems and settle in unhealthy, overcrowded slums and shantytowns. Endemic unemployment is the norm. Those who find no work often survive through petty crime, drug pushing and prostitution. Extended family structures break down and leave the individual isolated. Alcoholism and high suicide rates follow. To be ‘assimilated’ into the urban society in this negative way is nothing short of ethnocide because it denies to the indigenous people the right to enjoy, develop and disseminate their own culture and language. Assimilation on these terms has been the fate of many millions of indigenous peoples since colonization began and continues to be a threat to millions more.

In reaction to the hardships they face, an international movement of indigenous peoples has emerged to defend their rights and promote their interests. They demand tangible respect for their land rights, natural resources, cultures, languages and customs as fundamental human rights. They call for an end to persecution and victimization arising from militarization and acts of ethnocide and genocide. Indigenous peoples are not opposed to economic development to promote global welfare if it brings benefits to their communities and does not destroy the environment. However, there is no effective legislation and mechanisms in place to protect them at the national and international level. Consequently, their welfare and, indeed, survival depend not only on their own struggle but also upon the support of all those individuals, institutions and governments, that understand an_d promote their humanitarian cause.

Our views and suggestions relating to the various issues affecting indigenous peoples are reflected in the Sectoral Report which has already been published. The main recommendations, for action at different levels, are summarized below:

At the national level, we urge governments:

• To recognize and promote respect for the populations, territories and institutions of indigenous peoples. They should be guaranteed the right to manage their own affairs and to determine their own future, while enjoying equal rights in the affairs of the State. The customs and traditions of indigenous peoples should be respected and effectively protected and promoted. They should have the right to determine their own status as indigenous people and play the decisive role in terms of their own social organization and culture as well as development.
• To guarantee to indigenous peoples rights to their traditional territories and natural resources. In cases where land has been taken away without their consent, it should be returned or adequately compensated for. Treaties and agreements between indigenous peoples and States, or between States affecting indigenous peoples, should be honoured by governments. Relocation of indigenous peoples or settlement in their territories should take place only with their full and informed consent.
• To combat discrimination against indigenous communities and to educate the general public in order to create support for governmental action in favour of indigenous peoples’ rights and welfare. In this regard, review and revision of national histories and textbooks, taking into account the views of the indigenous population, must be a priority.
• To increase funding for indigenous social services and education to reach, at least, the minimum level of the rest of the Indigenous peoples should be enabled to manage these services in accordance with their own customs and traditions. Governments should also provide funds for indigenous peoples to maintain legal and technical expertise of their own choice to assist in their negotiations with the government, with corporations, and others. Any government bodies established to promote the interests of indigenous peoples should be autonomous, include indigenous representatives and have full authority to intervene effectively on their behalf.
• To contribute generously to the newly established United Nations Voluntary Fund for Indigenous Populations and take all necessary measures to ensure their representation in the relevant international forums.

In the field of development, we recommend that: 

• Governments, development banks and transnational corporations consult fully with indigenous peoples before projects are initiated in their territories. Comprehensive social and environ­mental impact studies should be undertaken with the collaboration of indigenous peoples before any development project is approved, funded or implemented. These studies should indicate the additional cost estimates of the project on the basis of profit­ sharing arrangements with the indigenous community, land reclamation, training and employment programmes, and various forms of compensation due to the community.
• Multinational development banks ensure that indigenous peoples are in favour of and support the development projects they finance. They should adopt a code of conduct, in co­-operation with indigenous representatives, governing the conditions for loans relating to indigenous peoples’ lands and lives. Development banks should accept the principle of active participation by indigenous peoples in resource development projects, including in particular the planning and implementation process.
• The World Bank, with the collaboration of indigenous peoples, revise its policy statement on tribal peoples so that existing ambiguities are removed.
• Transnational corporations draft a code of conduct with indigenous representatives to govern projects they conduct on or which affect their This would include indigenous approval, profit-sharing, land restoration and proper compensation for loss of land and resources. Such a code of conduct should ensure local preferential hiring and job training.
• Corporations both commercial and non-profit, including those of indigenous peoples, contribute generously to the United Nations Voluntary Fund for Indigenous Populations.

At the international level, we call upon:

•  The International Labour Organization to make every effort to meet its timetable to revise its Indigenous Populations Convention (107) by 1989, and incorporate the recommendations it has received from indigenous representatives and other experts. The greatest number of States should promptly ratify and implement the revised Convention. The ILO should devise a mechanism for the inclusion of indigenous representatives, both in the revision process and for monitoring implementation of the Convention. In order that the work of revision and monitoring of the revised Convention be effective, human and financial resources should be increased.

• The Working Group on Indigenous Populations of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities to accelerate its task of preparing a draft declaration of indigenous peoples’ It should be enabled to devote more time to review developments. It should also hold periodic meetings in countries or locations of indigenous communities. Its allocated financial and human resources should be increased substantially.
• The newly established United Nations Voluntary Fund for Indigenous Populations to broaden its mandate to enable it to fund the travel of indigenous representatives to a range of relevant international meetings in addition to the UN Working Group’s annual meeting in Geneva.
• The international agencies such as UNESCO, UNEP, UNCTAD, UNID O, UNICEF, UNHCR, WHO, FAO, UNRISD, UNITAR, as well as regional inter-governmental organizations, to include the issues of indigenous populations in their agendas and programmes. Indigenous professionals should be recruited to help in the elaboration and implementation of programmes.
• All relevant committees of the United Nations to include discussion of indigenous For example, the Committee on Transnational Corporations should include the effect of their activities on indigenous lands in its development of a code of conduct; the Committee on Disarmament should examine the question of effects of military activities on the lives and lands of indigenous peoples.

For immediate action, we are of the opinion that:

• Recourse procedures must be established within the United Nations to examine threats to the survival and well-being of indigenous peoples. An international ombudsman, under the United Nations aegis, could help monitor such Such a person, designated by the United Nations Secretary-General on the basis of objectivity and impartiality and internationally recognized experience and expertise, should report to the General Assembly, through the Secretary-General, all crisis situations affecting indigenous peoples, including armed conflicts, forced relocations, ethnocide and genocide.
• As recommended by the United Nations Sub-Commission Special Rapporteur on the Problem of Discrimination against Indigenous Populations, an official study should be made at the earliest opportunity of the status of treaties and other agreements between indigenous peoples and States, as well as treaties between indigenous peoples and States, as well as treaties between States affecting indigenous peoples.
• The United Nations General Assembly should respond to the recommendations of indigenous and other organizations over the past decade, as well as that of the United Nations Sub­ Commission’s Special Rapporteur, and proclaim 1992 to be the ‘International Year of the World’s Indigenous Peoples’.

 

The Disappeared

“Wherever law ends, tyranny begins.”

John Locke , 1690

Disappearances, a sinister form of political repression, were first documented systematically in the mid-1970s by the Latin American media and human rights organizations. Since then, greater awareness of the widespread use of clandestine abductions and torture to terrorize and silence opponents has helped expose the various regimes which attempt to cloak their abuse of human rights in secrecy and anonymity. Disappearances carried out by, or on behalf, of official authorities are now a recorded practice in some 35 countries around the world.

The clandestine nature of the practice, and the official silence and denials which condone and perpetuate it, go a long way to explain its methods and rationale. Disappearances are designed to paralyze and destroy dissent – invariably described as subversive – while maintaining a facade of the rule of law or semblance of democracy. They are prevalent in systems where an ideology of national security predominates and stability is defined in terms of maintaining the military and economic supremacy of those in power. This entails the subordination of the interests of the individual to those of the State and is generally the context within which disappearances occur.

Disappearances are invariably associated with authoritarian regimes. In a free and open society where individual rights and freedoms and diverse opinions are respected, it would obviously be difficult to carry them out. However, not all oppressive regimes use disappearances as a means of coercion. Those, impervious to international opinion and confident of retaining their hold on power, rely more on overt forms of repression to suppress dissent.

Paramilitary groups with no defined legal status or official link with the government authorities, are used in order to carry out disappearances. Such groups facilitate the government’s denial of all knowledge and responsibility and allow it to blame extremists beyond its control.

Snatch squads are allowed to act with impunity, spreading fear and terror throughout a community. The disavowal of any connection with these groups is often a key element in a repressive government ‘s strategy to bolster its democratic appearance in the hope of avoiding international condemnation and the possibility of sanctions.

There is, as yet, no universal legal definition of disappearances, but its characteristics are easily distinguished from other situations where individuals are described as missing. A distinctive and determining factor in identifying a situation as a disappearance case is the deliberate intention of the authorities to abduct an individual using military, political or secret service officials, or by the intervention of groups acting with their explicit or implicit approval, for the purpose of intimidation or repression. Persistently denying their involvement, and thus the legal rights and existence of the individual, authorities insist they are unable to provide information on the whereabouts or ‘state of the abducted person. Disappearances are thus intrinsically different from other human rights abuses, such as extra-judicial killings, detention without trial, internment and torture while in custody.

Governments do not like being questioned about their human rights standards or being characterized as a repressive regime. They are prone to take advantage of the political turmoil which tends to prevail in situations in which disappearances occur to mask their own responsibility. This is often done through the use of a state of emergency which enables governments to resort to the use of discretionary powers or legislation by decree. They are thus in a position to flout the standard legal procedures universally recognized as essential to the protection of the individual against the abuse of power. Although a state of emergency, subject to certain conditions, is recognized under international law, all too frequently it is used as a pretext to eliminate political opponents and to disguise gross violations of human rights.

Whatever the circumstances or rationale used for the introduction of a state of emergency, as stipulated under the International Covenant on Civil and Political Rights, there is no situation that can justify contempt for fundamental human rights. These include the right to life, right to recognition as a person before the law, right to a fair trial, right to humane conditions of detention including the right not to be subjected to torture or to cruel, inhuman treatment or punishment.

The principal form of recourse in a country governed by the principles of law is through the court system and the application of habeas corpus or similar procedures. In Latin America it is known as amparo which literally means protection, the object being to ensure an enquiry into the lawfulness of an individual’s detention. Even if no overt limitations are placed on such procedures, they cannot be effective in the absence of an independent judiciary.

Disappearances rarely occur in isolation. Other means of repression including press censorship compound the difficulty of highlighting these atrocities. Under authoritarian regimes, a free and vigorous press is, by definition, not possible. Even if not completely silenced, it can only operate by careful self­ censorship or by risking reprisals. Journalists who have dared to investigate abductions are themselves often victims of the same fate.

Likewise, human rights activists or anyone who expresses concern over the fate of the disappeared are equally at risk of being harassed or abducted. Threats to family members, the fear of compromising individuals not associated with human rights agencies or other such groups, and the inherent difficulties of operating under a repressive regime, severely limit the work of organizations trying to assist the relatives of the disappeared and bring to light such atrocities .

It is thus difficult to estimate the extent of such practices. Actual cases which are known and documented may thus be just the tip of the iceberg. Owing to a climate of fear and intimidation, many countries Jack any type of reporting mechanism. Organizations which do manage to collect data readily acknowledge that their figures are merely a fraction of the total number abducted. The suffering of the ‘living dead’, repugnant to any civilized society and an affront to our shared humanity, has prompted various organizations at the inter­ nation al, regional and local level to develop standards and mechanisms designed to facilitate the exposure of this abuse of human rights.

In 1980, in response to growing public concern about disappearances, the United Nations Commission on Human Rights established a Working Group on Enforced or Involuntary Disappearances. Notwithstanding the inherent constraints, including the limited resources, under which it operates, the Working Group has been instrumental in bringing pressure to bear on governments implicated in disappearances. It reports annually to the Commission on Human Rights but only on cases which are well substantiated. Since the Working Group is not in a position to make independent investigations, in the sense of going to a country and conducting its own enquiry, it relies mostly on local groups to provide the relevant documentation. The Working Group, for example, reported on 3,367 cases of disappearances carried out in Argentina under the previous regime. An official enquiry undertaken by the new government put the figure at 8,960 and press estimates, which many consider a more accurate reflection, range from 15,000 to 30,000.

The Working Group deals directly with governments. Its mandate is thus unique in that it is at the immediate disposal of families and can take rapid action to save human lives. However, the impact and scope of the Group ‘s work is limited since it is largely reliant on local groups and individuals to provide the necessary information. Moreover, it depends on governments to make appropriate investigations and report back on the whereabouts of the disappeared. Not too surprisingly, there is a huge discrepancy between the number of cases transmitted to governments and those which are resolved. In addition, unsatisfactory and contradictory responses from governments involve time-consuming clarification of facts which severely impedes the work of the Group.

Another body which looks into disappearances is the Human Rights Committee established in 1976 under the International Covenant on Civil and Political Rights. Eighty-five States have so far ratified it but only thirty-eight are parties to its Optional Protocol which grants the Committee the right to consider communications from individuals and non-governmental organizations. The Committee reports annually on its deliberations to the United Nations General Assembly. This is its only means of sanction against a State which fails to fulfil its obligations.

The International Labour Organization (ILO) has adopted numerous Conventions relating to human rights such as freedom of association, protection from forced labour, and non-discrimination. In common with all such international organizations, it does not have the power to impose compliance but it has developed various mechanisms to monitor the application of standards. In connection with the disappearance of a trade union leader, for example, the Committee on Freedom of Association considers complaints received from unions, employer’s organizations, and governments. If the government fails to respond satisfactorily, the ILO Director­ General may approach it directly for additional information or, as in the case of Argentina in 1978, may send a representative to the country in question. This can sometimes put pressure on the government to obtain its co-operation.

The United Nations Educational, Scientific and Cultural Organization (UNESCO), concerned with the rights to freedom of thought and expression, has developed a number of procedures to deal with disappearances. Complaints may be filed by individuals, associations or international organizations when substantiated with reliable in formation. The Committee of Conventions and Recommendations of UNESCO may, during the course of its meetings which are held in the presence of representatives of the governments concerned, invite witnesses or those who have filed complaints to give testimony. The Committee may publicize evidence of human rights abuses in its Report or submit cases to the General Conference of UNESCO. However, the work of the Committee is not well known since it receives only a few cases annually.

Regional inter-governmental organizations such as the Council of Europe, the Organization of American States (OAS), the League of Arab Sates and the Organization of African Unity (OAU) have developed or are in the process of developing procedures complementary to the mechanisms which operate at the international level. These range from the European Court of Human Rights, in which cases on behalf of individuals can be heard and reparations awarded if the accused party, the State, is found guilty, to the Inter-American Commission on Human Rights which sends investigatory missions, prepares reports on countries, and considers complaints filed by individuals. The European Commission on Human Rights, which is empowered to consider complaints by individuals covered by the European Convention, has investigated disappearances within its area of competence. On the other hand, the absence or inadequacy of regional human rights mechanisms for countries in Africa, Asia and Eastern Europe continues to be a matter of great concern.

In sum, progress has been made in recent years to codify international law in respect of human rights but much remains to be done in strengthening what are, in effect, very fragile procedures to protect individuals against the abuse of power.

It is, perhaps, not too surprising, given the reality of relations between States and the many factors which determine how they interact, that the inter-governmental organizations they establish generally tend to be cautious and slow. However, non-governmental organizations (NGOs), sometimes described as the ‘oxygen’ essential to international human rights bodies, are often instrumental in generating public awareness of disappearances by making information available and bringing pressure to bear on inter-governmental organizations to take appropriate action.

NGOs have the advantage of flexibility which allows them to adapt to the circumstances of different situations. Quite often they are the best equipped to undertake in-depth studies on the methods used in disappearances and compile information which is frequently necessary to expose the apparatus of a repressive regime. They also provide moral and material support to those whose rights have been denied. Their independence allows them to publicize their investigations, increase public awareness and mobilize international action. National groups are often in a unique position to act as an ‘early warning system’ by alerting the international community to the first signs of political repression.

In the course of our discussions in the Commission, we reviewed the role of the NGOs active in the field. They are too numerous to mention here. Their methods of work have been commented upon in the ICIHI Sectoral Report on the subject. We believe that the public and governments need to strengthen their support for the NGOs active in this hazardous and challenging area.

The ability of the international community to put an end to the odious practice of disappearances is hampered by the very nature of the phenomenon. Unlike other types of repression which are visible, disappearances are cloaked in anonymity, which compounds the difficulty of tracing those responsible and bringing the evidence to light. The application of habeas corpus or amparo provides concrete means of recourse and is thus an essential prerequisite for abolishing disappearances. A major question, therefore, is how can respect for, and effectiveness of the legal apparatus, be strengthened?

Many organizations have called for a new convention. However, its potential usefulness has been questioned since disappearances are already forbidden under existing international law. This is a valid argument. Nonetheless, even though the existence of a law does not automatically guarantee freedom from human rights violations, any measures at the international level to increase individual protection and the effectiveness of verification procedures necessary for obtaining evidence and imposing sanctions, would be a step in the right direction.

Since the initiation of a state of emergency is often the forerunner of human rights abuses, States should be urged to ensure that no violations occur while such measures are taken. It has also been proposed that, as a way of preventing disappearances from occurring while persons are held in prison, a bound registration book with numbered pages be maintained in each place of detention recording the identity of each individual, the reasons for imprisonment, the authority which took this decision, and the exact date of imprisonment , release or transfer to another institution.

The effectiveness of procedures currently available to international bodies and their ability to ensure a more rapid response to disappearance cases would be enhanced if they were empowered to utilize means of ‘direct contact’ with the governments concerned, and if the relevant bodies were ready to intervene at all times and not just during periodic working sessions. Effectiveness would also be increased if urgent cases were given priority and if there was the possibility of intervening before all internal resources have been exhausted. When it is not possible, owing to the conditions in which people are abducted, to obtain undeniable proof of the involvement of the authorities in disappearances, consideration could be given to circumstantial evidence. Full account should be taken of the behaviour patterns of the States concerned. The Organization of American States and the Council of

Europe have both condemned disappearances as a crime against humanity. However, the concept and the supporting legal structures are, as yet, extremely vague. If penal law at the international level is to be effective, then appropriate structures must be developed to ensure its application.

The most effective sanction by international organization s, in the sense of penalty or punishment, is publication of their findings and condemnation of abuses. Publicity, therefore, should be used to greater effect to highlight and combat disappearances. For example, a scale of publicity ranging from confidential investigations to open debates identifying the authorities and individuals concerned could be adopted.

Time and again it has been proved that loud and widespread condemnation is one of the most effective and feared weapons which can be employed against the perpetrators of human rights violations. This is particularly true in relation to disappearances, clouded as they always are in secrecy. Relatives’ associations and human rights organizations which bear the brunt of the burden in exposing these practices deserve the strongest support possible. Solidarity is essential, as is financial and technical assistance, since the organizations are often hampered by lack of resources.

Public opinion has played a crucial role in making human rights a more prominent issue and is becoming increasingly important in international relations and influencing State behaviour. It is vital, therefore, that the public is constantly on the alert and does not become immune to the sickening repetition of oppression and the pain and horror that goes with it. Our collective determination to eradicate violations of human rights, such as disappearances, is the only way of ending them.

At the national level, we call upon governments:

• To respect fundamental human rights even during a state of emergency. In particular, they must immediately inform people and other States of the grounds for such action, the nature of the measures taken, and the specific rights which are suspended. International bodies should have at their disposal the means to make known the cases where such notification is not given.
• To give greater weight to circumstantial evidence in the case of disappearances where irrefutable proof cannot be obtained through legal investigations or eye-witness reports. Such evidence should take into account the behaviour pattern of the State concerned and should have consequences comparable to those of objective Thus the authorities should be taken to task whenever it is established that:
  • they have shirked their obligations over a given period of time;
  • there is a manifest discrepancy between the facts of the case and public statements;
  • there is proof of insufficient diligence in the search for dis­ appeared
• To consider circumstantial evidence applicable in cases where the authorities failed to keep a regularly updated register of detainees in all places of detention.

At the international level, we are of the opinion that:

• International bodies, in their present or future work methods should adopt simple and speedy procedures designed to match the urgent nature of the problem. These should include, to the extent possible:
  • direct contact with the parties concerned;
  • the designation of bodies empowered to act between formal sessions;
  • the possibility for some cases to be given priority on the agenda;

• the option to intervene even before all national remedies have been
• It would also be desirable for the United Nations Working Group on Enforced or Involuntary Disappearances to have a mandate of longer duration.
• There should be, at all times, available as public documents, an up-to-date list of countries which declare or rescind a state of emergency. Within the United Nations, such a list could be the responsibility of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities.
• Just as there are graduated punishments in penal law, so a graduated scale of public exposure could be developed and implemented by international organizations. The degree of exposure or publicity given would depend on the strength of proof obtained against the authorities concerned, on the gravity of their actions (isolated cases or routine practice), and on their willingness to co-operate.

We are furthermore of the opinion that:

•  Individuals involved in disappearances should be held responsible, on a personal basis, for crimes attributable to them. They should then be subject to the corresponding punishment as opposed to collective responsibility and
• Although many think that the practice of disappearances should be considered a crime against humanity, the concept is laden with historical connotations. It does not take into account certain elementary principles rooted in statutory and common law, such as prescription and non-retroactivity. We feel that a more appropriate concept would be to qualify the practice as lese-humanite, or offence against humanity, which should be developed with the necessary provisions for its application.
• Information must be made to circulate even more widely, through the written word, in books and articles, as well as through the media and public meetings. The press, with all the resources at its disposal, must draw the attention of the public at large to the hidden drama of disappearances.